Volume 612 Week 40 - Tuesday 21 October 2003(continued on Thursday 23 October 2003) 
Volume 612 Week 40 - Tuesday 21 October 2003(continued on Thursday 23 October 2003) 
[Volume:612;Page:9535] 
Tuesday 21 October 2003 
( 
continued on Thursday 23 October 2003 
) 
Criminal Justice Amendment Bill (No 7) 
In Committee 
Debate resumed. 
Clauses 1 to 20 and schedules 
The CHAIRPERSON (Ann Hartley) 
: When the sitting was interrupted last night Dr Paul Hutchison was speaking and has 2 minutes 52 seconds remaining. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 Have I got 2 seconds remaining on this extremely important bill— 
The CHAIRPERSON (Ann Hartley) 
: No the member has 2 minutes remaining. 
Dr PAUL HUTCHISON 
: —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. 
Dr PAUL HUTCHISON 
: 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. 
Hon RICK BARKER (Minister for Courts) 
: 
 I move  
That the question be now put 
. 
RON MARK (NZ First) 
: 
 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. 
RON MARK 
: What was that? 
Hon Phil Goff 
: It was reported back in 2001. 
RON MARK 
: 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. 
RON MARK 
: 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. 
RON MARK 
: This is the first black mark on his copybook. 
John Carter 
: The barbecue! 
RON MARK 
: 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. 
JOHN CARTER (National—Northland) 
: 
 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. 
JOHN CARTER 
: Excuse me! The Minister said that he would not mention that. 
Pansy Wong 
: That’s three blots. 
JOHN CARTER 
: 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 Maori Affairs—to state “or disorders of mood”. Bless my soul. Our Minister of Maori Affairs often interests this House when he is answering questions. I wonder whether the Minister may have had the Minister of Maori 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? 
JOHN CARTER 
: 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. 
Hon PHIL GOFF (Minister of Justice) 
: 
 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. 
HEATHER ROY (ACT) 
: 
 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. 
HEATHER ROY 
: 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. 
DAVE HEREORA (Labour) 
: 
 I move  
That the question be now put 
. 
DAIL JONES (NZ First) 
: 
 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. 
DAIL JONES 
: 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. 
DAIL JONES 
: 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. 
DAIL JONES 
: 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. 
PANSY WONG (National) 
: 
 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. 
STEVE CHADWICK (Labour—Rotorua) 
: 
 I move  
That the question be now put 
. 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 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. 
MARK PECK (Labour—Invercargill) 
: 
 I move  
That the question be now put 
. 
STEPHEN FRANKS (ACT) 
: 
 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. 
STEPHEN FRANKS 
: 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. 
STEPHEN FRANKS 
: 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. 
STEPHEN FRANKS 
: 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. 
STEPHEN FRANKS 
: The Minister says it is because it is to be a stand-alone Act. 
DAVID BENSON-POPE (Senior Whip—Labour) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 69 
New Zealand Labour 52; Green Party 9; United Future 8. 
Noes 46 
New Zealand National 27; New Zealand First 13; ACT New Zealand 6. 
Motion agreed to. 
The question was put that the following amendments in the name of the Hon Phil Goff to proposed clause 2 and proposed clause 49A set out on Supplementary Order Paper 161 in the name of the Hon Phil Goff be agreed to: 
to amend clause 2 set out on Supplementary Order paper No 161 by adding the following new subclause: 
(2)Despite subsection (1) if the date appointed under that subsection is prior to the commencement of section 4A of the Criminal Investigations (Bodily Samples) Act 1995 section 49A comes into force on that commencement; and 
to omit new clause 49A as set out on Supplementary Order Paper No 161 andsubstitute the following: 
49AAmendments to Criminal Investigations (Bodily Samples) Act 1995 
(1)In this section the Criminal Investigations (Bodily Samples) Act 1995 is called “the Act”. 
(2)Section 2(1) of the Act is amended by adding to paragraph (c) of the definition of  
conviction  
the word “; and” and by also adding the following paragraph: 
(d)a finding that the person is unfit to stand trial;—. 
(3)Section 4A(1) of the Act is amended by repealing paragraph (c) and substituting the following paragraphs: 
(c)in or on leave from a hospital— 
(i)under section 46 of the Mental Health (Compulsory Assessment and Treatment) Act 1993; or 
(ii)following an application under section 45(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1993; or 
(iii)under an order under section 34(1)(a)(i) of the Criminal Procedure (MentallyImpaired Persons) Act 2003; or 
(d)in or on leave from a secure facility— 
(i)following an application undersection 29(1) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or 
(ii)under an order under section 34(1)(a)(ii) of the Criminal Procedure (MentallyImpaired Persons) Act 2003.” 
(4)Section 46(1) of the Act is amended by adding to paragraph (d) the word “; or’ and by also adding the following paragraph: 
(e)in a facility under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. 
A party vote was called for on the question  
That the amendments to the amendments be agreed to. 
Ayes 69 
New Zealand Labour 52; Green Party 9; United Future 8. 
Noes 46 
New Zealand National 27; New Zealand First 13; ACT New Zealand 6. 
Amendments to the amendments agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 161 in the name of the Hon Phil Goff as amended be agreed to. 
A party vote was called for on the question  
That the amendments as amended be agreed to. 
Ayes 69 
New Zealand Labour 52; Green Party 9; United Future 8. 
Noes 46 
New Zealand National 27; New Zealand First 13; ACT New Zealand 6. 
Amendments as amended agreed to. 
A party vote was called for on the question  
That clauses 1 to 20 and the schedule as amended be agreed to. 
Ayes 69 
New Zealand Labour 52; Green Party 9; United Future 8. 
Noes 46 
New Zealand National 27; New Zealand First 13; ACT New Zealand 6. 
Clauses 1 to 20 and schedule as amended agreed to. 
Bill reported with amendment. 
Name changed to the Criminal Procedure (Mentally Impaired Persons) Bill. 
Criminal Procedure (Mentally Impaired Persons) Bill 
Third Reading 
Hon PHIL GOFF (Minister of Justice) 
: 
 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. 
Mr SPEAKER 
: The question is that the Criminal— 
Hon Phil Goff 
: The Criminal Procedure (Mentally Impaired Person) Bill. [ 
Interruption 
] 
Mr SPEAKER 
: The question is that the Criminal Procedure (Mentally Impaired) Persons Bill be now read a third time. 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 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. 
MARK PECK (Labour—Invercargill) 
: 
 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? 
MARK PECK 
: 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. 
DAIL JONES (NZ First) 
: 
 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. 
DAIL JONES 
: 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. 
HEATHER ROY (ACT) 
: 
 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. 
HEATHER ROY 
: 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. 
MARC ALEXANDER (United Future) 
: 
 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. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 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. 
Dr PAUL HUTCHISON 
: 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. 
Dr PAUL HUTCHISON 
: 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. 
Dr PAUL HUTCHISON 
: 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. 
JOHN CARTER (Senior Whip—National) 
: 
 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. 
IAN EWEN-STREET (Green) 
: 
 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. 
JILL PETTIS (Labour—Whanganui) 
: 
 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. 
JILL PETTIS 
: I asked Mr Hutchison by way of— 
Hon Member 
: Dr Hutchison. 
JILL PETTIS 
: —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. 
JILL PETTIS 
: 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. 
PANSY WONG (National) 
: 
 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. 
A party vote was called for on the question  
That the Criminal Procedure (Mentally Impaired Persons) Bill be now read a third time. 
Ayes 69 
New Zealand Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Bill read a third time. 
Intellectual Disability (Compulsory Care) Bill 
Consideration of Report of Health Committee 
Hon DAMIEN O'CONNOR (Associate Minister of Health) 
 
 on behalf of the  
Minister of Health 
: I move  
That the House take note of the report of the Health Committee on the Intellectual Disability (Compulsory Care) Bill. 
 This bill provides for the assessment and care of people with an intellectual disability who are charged with or convicted of an imprisonable offence. It bridges a legislative gap that has existed since 1992.  
People with an intellectual disability are included in the definition of mental disorder in the Mental Health Act which was later linked to the Criminal Justice Act in 1985. However the Mental Health (Compulsory Assessment and Treatment) Act in 1992 deliberately excluded people with an intellectual disability unless they also had a mental disorder. 
This exclusion created a legislative gap between the two Acts for people with an intellectual disability who offended resulting in inappropriate placement in prison in forensic mental health services or in discharge into the community. As a result of this gap there are limited options available to the courts for dealing with people with an intellectual disability who are in need of compulsory care. For some this has resulted in inappropriate placement in prison in mental health services or as I said in discharge into the community. 
This bill links with the Criminal Procedure (Mentally Impaired Persons) Bill to enable the criminal court to impose appropriate orders for defendants with an intellectual disability. The purposes of the bill as reported back are: firstly to provide courts with appropriate compulsory care and rehabilitation options for people who have an intellectual disability and who are charged with or convicted of an imprisonable offence; secondly to recognise and safeguard the special rights of people subject to this bill; and thirdly to provide for the appropriate use of different levels of care. 
It is estimated that about 50 to 100 people will be affected by this bill. The bill was introduced into the House in 1999 and the main changes that were recommended by the process through the Health Committee were firstly to change the name to the Intellectual Disability (Compulsory Care and Rehabilitation) Bill as stated. This reflects the focus on rehabilitation as well as compulsory care. Secondly the committee recommended that the bill apply only to offenders with an intellectual disability because the bill as introduced applied also to non-offenders. Thirdly the committee changed the definition of “intellectual disability”. I commend the bill to the House. 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 I thank the House for the opportunity to speak on one of the first bills I worked on when I became a member of Parliament in 1999. It was a pleasure to be able to come to Parliament because then it had no members who were medical doctors. I had the slogan: “Put a doctor in the House.” and it was good to be able to be part of the Health Committee and work on a bill in an area on which I had quite bit of knowledge and experience in my past life as a nurse and a doctor. 
In 1992 changes were made to the Mental Health Act as we have heard. Those changes meant that people with an intellectual disability were no longer covered by the Mental Health Act. My very first job was working as a nurse-aide at Porirua Hospital. In those days in the 1970s psychiatric hospitals were very large institutions that had within them a large number of people with intellectual disabilities. As those hospitals closed down those with an intellectual disability were placed in the community. It was recognised that there is quite a difference between someone with an illness due to a mental health problem and someone with an intellectual disability. The cause may have been congenital—people may have been born with an intellectual disability. Excluded from this bill are those who acquire brain injury either by accident or by stroke. The bill does not cover those people. Those types of situations where there is challenging behaviour are still not covered. However the bill did fill both a legislative gap and a service gap in the community. 
The bill was introduced in 1999 by the Rt Hon Wyatt Creech. At that time it had two sections to it; one was for offender groups and the other was for non-offender groups. The aim of the bill was to determine that intellectually disabled persons who had committed a criminal offence and who could not be held responsible for their actions could be placed in permanent care and have a secure environment. 
It is always interesting that specific cases often drive a need for legislative change because they demonstrate so clearly where the gaps are. One of those cases was that of David Stephens. His parents were having a very hard time trying to cope with David’s care. David had an intellectual disability. He was a very big lad and as he grew older his behaviour deteriorated. When he was able to be cared for under the Mental Health Act he spent time at Tokanui. Mr and Mrs Stephens described this time as being probably the best time because he was managed. However when he was released from Tokanui they could not cope with him and there was nowhere else appropriate for him. 
The Stephens were the very first submitters to the select committee and they appeared before it in person. They said they supported the intent of the bill that provided protection of a legal status for someone with an intellectual handicap who has offended or who is in danger of offending. We heard from intellectual disability groups from around New Zealand from the Human Rights Commission and from civil liberties groups that those who have not offended but who have an intellectual disability are entitled to the same rights as any other person. I had to agree with that. I had to agree that just because a person may have an intellectual disability and behave in a way that is strange to those viewing that person perhaps in the street it does not mean that that person is likely to commit an offence. Luckily in today’s society people with an intellectual disability are living within our communities and people have a lot more understanding than they used to. 
However the select committee decided that it would be only those who had committed an offence who would come under the jurisdiction of this bill. At that time the National Government put in a large bucket of money—to the tune of $20 million—to go with this bill to develop services. I am pleased that although it has taken this Government such a long time to get this bill before us—and we are pleased to have it here today at long last—the fact is that that money has been spent to develop services for people with an intellectual disability who commit an offence. 
Because the non-offender group was taken out of this bill there also needs to be good wrap-around services for people whose behaviour is deteriorating. That can happen for a lot of reasons but generally it is because of the stresses and changes in a person’s life. I remember a case of an intellectually handicapped young man in my own hometown. His mother had a stroke and his father died. They had cared for this young man their son who was in his 40s by the time I got to meet him. When his whole support structure collapsed and the scaffolding in his life fell apart his behaviour deteriorated markedly and he ended up in the criminal justice system. That was totally inappropriate for someone with an IQ of probably around 70. 
I have been reading the Supplementary Order Paper introduced by Ruth Dyson. She has changed the definition of “intellectual disability” and I am very disappointed about that. The Health Committee spent a lot of time looking at the definition of “intellectual disability”. We did not want it to be a rigid IQ of 70 or below because many other factors can come into it when looking at someone with an intellectual disability. A person may have a slightly higher IQ but have very very poor social skills. If the definition of “intellectual disability” is tightened up as in the Supplementary Order Paper then one excludes people from being able to be cared for under this bill and I have some concerns about that. If members look at the bill they will see that the first 90 pages have all been struck out. So through the select committee process we did make major substantive changes to the way the bill works. 
The submission from the Stephens pointed out their distress and the trauma was relieved when their son was admitted to the Kimberley Centre. But he would assault staff and leave to go off down the road. There was no law by which they could put him in a secure facility and take away his right to be free to walk wherever he chose. David assaulted somebody in the street and in the end they used I think the Protection of Personal and Property and Rights Act to contain him in a secure environment. As I have said the millions of dollars that were put up by the National Government to back this bill have been used to expand services within the community markedly during the last 4 years while we have waited and waited for this bill to come to this House. 
The changes we made to the legislation by excluding the non-offender group were supported by the Society for the Intellectually Handicapped. I talked to Barbara Rocco the other day a former chair of the society and told her that this bill was in the urgency motion. She could not believe it. She said: “I will hold my breath and just wait because I have been waiting for so long for this bill to be passed trough Parliament.” So she will be very pleased that we are debating it today. Hopefully we will see it through its Committee stage and third reading because the National Party will be supporting it. 
DIANNE YATES (Labour—Hamilton East) 
: 
 I wish to thank the previous speaker for supporting the bill. It is a bill that many of my constituents will be pleased to see passed. I also want to thank Judy Keall the previous member for Otaki for the work she did on this legislation as former chair of the Health Committee. 
PITA PARAONE (NZ First) 
: 
 I welcome the opportunity to participate in the debate on this bill. New Zealand First is supportive of it. The rights of those in our community with an intellectual disability need to be enshrined in law since current mental health legislation does not apply to them thus resulting in a limited range of options available for dealing with those in need of compulsory care. The events of recent times involving loss of life call for such legislation. Furthermore how often have we heard criticism of the judiciary as to the inadequacy or even the inappropriateness of their order when dealing with matters that come before it? I believe that this bill provides a much clearer indication for the judiciary to deal with those issues. 
Admittedly the bill has been substantially rewritten since its original introduction on to the legislative agenda. In the last Parliament the House and the Health Committee—on which New Zealand First did not have a member—limited its scope to those with an intellectual disability who had been charged with an imprisonable offence and found guilty or unfit to stand trial or those who had been detained but had completed their sentences. This is to ensure that people who are deemed to be a danger to themselves and/or to others are not locked away because they might offend. The way people with intellectual disabilities are regarded and treated in our society has changed and deinstitutionalisation and mainstreaming now underline the approach taken thanks to earlier Labour and National Governments—the decision that we are now seeing the adverse consequences of. 
This is all fine and well as long as the resources are there to cope with the demands of this and the burden of care is not placed on the families or the nebulous community. We must accept that some people in our society are not able to participate in a normal way because of the dangers they pose to themselves and others. Secure care or constant supervisory care is necessary for those people and I do not mean locking them up in prison with criminal offenders. This bill is an attempt to ensure the correct balance between proper care for the people who are affected and the rights and the safety of the community. 
This is where my reservations lie because all too often it takes a tragedy to occur before it is realised that the skills training and particularly the resources that are required to manage the daily care of those people that this bill applies to are totally inadequate. 
I watched with great sadness the Television New Zealand  
Documentary New Zealand  
programme 
last Monday which told the stories of three families who had lost family members under violent and heart-breaking circumstances because of severe lapses in the care and supervision of mental health patients. I will never forget the words of the man whose wife lost her life at the hands of their schizophrenic son. He said that his son had been released into community care but it was in effect he said community neglect. That is a sad commentary on the state of this country’s present attitude towards the care of those of our society who are identified as intellectually disabled. He was a young man with a serious mental illness who was left to his own devices. He had severe negative and psychotic feelings towards members of his own family. We know the outcome of that episode. This young man who had been cared for under the Mental Health (Compulsory Assessment and Treatment) Act 1992 was allowed to fall through the gaps with disastrous results. Now he and his family must live with the results of that just as people with intellectual disabilities and their families must live with the reality of their situations. For them the reality is that they will never recover or grow out of their disability. They will always need special care. 
It is imperative then that we provide the best care available and ensure that the quality of staff is of the highest calibre and above all suitably trained. This means we must fund the best training for the best people who are capable of working effectively with people who have intellectual disabilities. This means realistic remuneration ensuring a full complement of staff at all times and providing the best facilities available. 
Notwithstanding the report on progress in 2001-2002 towards implementing the blueprint for mental health services in New Zealand I would like to know whether the ministry has developed this disability strategy and if so how this problem of resources including staff attraction and retention is being addressed. I would like to be assured that they are well-resourced well-staffed and with well-funded facilities for those people who require the sort of care we are talking about. 
A further issue was raised with regard to children or young people under 17 years old with an intellectual disability and who are assessed as being a danger to themselves or others. The record shows that the Family Court Judge Mahoney submitted to the select committee that adequate services and facilities for these young people are not available and that they are often detained in secure facilities with young offenders. I understand that the select committee has sought assurance from officials in the ministry that strategies are being developed to address this issue. I would like to know whether this assurance has been given; if not when it will be; and if so what progress has been made. 
In summary New Zealand First is happy to support this bill and wants to make sure that it is properly implemented so that everyone who is affected by it can live with dignity and without fear that inadequate resources and lack of funding will turn this stream of care into a nightmare. 
STEPHEN FRANKS (ACT) 
: 
 I rise as the ACT spokesman on justice to address the second reading of the Intellectual Disability (Compulsory Care) Bill. I see that it is now to be called Intellectual Disability (Compulsory Care and Rehabilitation) Bill. That change in heading says quite a lot about this bill. The bill started out to try to draw a distinction regarding people who by reason of intellectual deficiency—low IQ defined in the bill—were permanently to be in care and would always need the community to look after them and also to look out for them. This is the bill that explains how people will deal with those who are so subnormal that they will be a threat to others and have committed crime. 
As I understand it although no ACT member at the moment was on the committee that considered this the difference or the distinction drawn here between people who are mentally ill and people who are just incapable of being left uncared for and out of custody in effect is supposed to be quite significant. But this bill is so nauseatingly horribly politically correct that it has now stuck right into the title the term “rehabilitation” which undermines the whole basis of the distinction. It seems to assume that these folk are simply people who have lapsed from a normal state of full competence and they are to be rehabilitated into that normal state of full competence. I hope to find out during the Committee stage whether my fears are in fact justified about this bill being likely to be counter-productive and utterly ineffective because of the nauseating approach that infuses it. 
I have looked carefully to see whether this bill deals with the primary problem in the boundary between the criminal justice system and the mental disability system. The real problem is that the criminal justice system takes measures to protect the rest of society the innocent. The health professional’s duty is clearly to the patient. That transcends all other factors. When we have people who have committed crimes or people who threaten or harm others the community needs to know that those who then have the custody and power of control of those folk have a duty to the rest of the community a duty to protect the innocent that transcends the duty to the patient. 
I am afraid I cannot find it in this bill. It may be there. It may be that this bill does resolve that fundamental conflict; if so it should be in plain terms. It should say that when patients come under the Act while they still have the expectations of patients with their carers there is one very very important qualification: that the carer has a primary and first-ranking duty to the community to make sure that they cannot harm others again. I fear that in all the disgusting verbiage of this bill that does not appear anywhere. 
I have used strong language. Let me just look at a few of the measures in this bill: for instance the statement of principles. When I look into Clause 12(d) of the principles governing children and young persons I start to get anxious: “consideration should be given to the wishes of the child or young person”—of course—“that is appropriate in the circumstances having regard to the age maturity and culture of the child or young person:”. In other words we are to draw race distinctions to govern whether we consider the wishes of a child. So having decided that someone’s culture is generally not very respectful of the wishes of a child the rest of New Zealand which holds that to be of high value will subordinate its judgment to the culture that has decided that it does not respect the wishes of a child. 
I then go to clause 13. All the powers of the Act have to be “exercised with proper respect for cultural identity and personal beliefs” including “proper respect for the care recipient’s”—that is a nauseating term is it not; what about patient— the patient’s “cultural and ethnic identity language and religious or ethical beliefs;”. I have no problem with religious or ethical belief. The rest are just synonyms or euphemisms for “race”. 
That in itself is not exceptional but I go a little further. We find when we look at clause 23 that every care recipient is to have a culture assessment. In other words one of the primary matters is to find out the race of the people in care. If the caregivers decide that the care recipient is a Maori and the care recipient agrees that he or she is a Maori the coordinator must then try to involve any suitable Maori organisation. This does not require the patient to agree that he or she wants a Maori organisation involved. All that that person has to agree is that he or she is Maori and the machinery of the State grinds in to draw it to make race discrimination. What does this have to do with the care and rehabilitation—as this proposes—or even the safe custody and humane treatment of mentally subnormal people who are a danger to their community? Nothing! It is politically correct garbage. 
The care and rehabilitation plan under clause 24 must identify the care recipient’s needs and take into account the cultural assessment. The whole thing is infused with race prejudice. The whole thing assumes not that these people are first people individuals—poor children many of them young persons who have been born with the worst cards in the pack. Instead it says to identify their race and start from there. Worse it does not say to the caregivers—another nauseating term—“Remember that once they have come into the criminal justice system the primary responsibility must be to the innocent to those who might be harmed in future.” It says no the primary responsibility is—first on the list clause 25(1)(a)—“the social cultural and spiritual needs” of the patient. That is before even their medical psychological or physical needs. The very first needs that have to be considered are the cultural needs. 
None of this augurs well for the detail in this bill. It says that the Health Committee soaked as it is in race consciousness has gone about looking at the needs of these people. Clause 50 is another one which I will not have time to go into in detail. Clause 50 carries it on. It states: “Every care recipient is entitled to be dealt with in a manner that accords with the spirit and intent of section 13.”—which is the one that sets up the race criteria. That is just in case we forgot halfway through the bill. The Government goes back to remind us that it has set this up as a primary duty. 
Then a little bit of lunacy that just caps it: all the provisions of the Health and Disability Commissioner’s Code of Health and Disability Consumers Rights regulation code are to apply to these folk who are in protective custody—that is protecting themselves and protecting the rest of us. Right No. 2 says that every consumer has the right to be free from discrimination coercion harassment and sexual financial or other exploitation. Free from discrimination! Yet the law tells the caregivers they have to start discriminating. And then the code says they are to be free from discrimination and free from coercion. The whole purpose of this bill is that they are subject to coercion they are in protective custody. This bill does not have the intellectual honesty to even make an exception for the irrelevant parts of this code that is to apply. 
This is a typical piece of politically correct nonsense from a Government that has waited 4 years since it was first introduced and then lands it on the House in urgency probably hoping no one will read it too carefully. 
SUE BRADFORD (Green) 
: 
 The Green Party welcomes the return of this bill to the House today. As most members will be aware it has been around for an awfully long time. While it is odd that we are dealing with such neglected legislation under urgency I am glad for the sake of the people affected that it will be finally passed into law. 
The need for this bill and for its accompanying Criminal Justice Amendment Bill (No 7) was created in part by changes to criminal and mental health legislation in 1992. The Green Party totally supports the intent of those changes which are to separate out legally offenders who are suffering from mental illness from those who have an intellectual impairment. Unlike some other speakers in this House over the last 24 hours Green Party members do not think that mental illness and an intellectual disability are the same thing. It was and is entirely appropriate that criminal offenders in those categories should be treated quite separately and distinctly under law. 
A problem occurred however when the legislative gap created by those changes meant that too few options in the intervening years were left to the courts for dealing with people with intellectual impairment in need of compulsory care. While their numbers are not large at any given time it does not mean that we as a society should simply dump those people into inappropriate places like prisons or mental health units. Over the last 20 years or so there has been a lot in the media and elsewhere about the problems associated with that unacceptable situation. 
For example the incidence of physical and mental abuse of intellectually disabled offenders in prisons is well documented and lurks like an unspeakable shadow within the greater conspiracy of silence about real life in New Zealand prisons. It is also reported that such prisoners are often abused and even exploited by other inmates are even less able to cope with the harsh environment and are far more likely to regress rather than progress towards any form at all of rehabilitation. Prison is a tough place even for those in sound physical and mental health and without any physical or intellectual disability. For people with major intellectual impairment it is horrendous that prisons have and continue to be the sentence of last resort. I hope that the passage of this bill really will mark the beginning of the end of that situation. 
The major concern the Green Party has with the legislation is not with its intent but with its implementation as the previous speaker also pointed out. We are suspicious that the number of secure placements needed for offenders covered by the bill’s provisions will not be enough—either now or in the future. We know that the Government has allocated more money and has started setting up hospital-level secure services facilities but progress does not appear to be happening quickly enough. I hope that the new regional intellectual disability care agencies will move as quickly as is practicable towards establishing the full range of services possible and that the Government will continue to commit sufficient funding as the agencies go along to make sure that that happens. 
I also note that the Green Party very much supports changes from the original drafting of the bill which mean adults and young people who are not criminal offenders will be excluded from the scope of this legislation. It was totally unacceptable from a human rights and a civil liberties point of view that the National Government even considered subjecting non-offenders to the provision of compulsory care under this bill. I am glad that the select committee had the sense to take that provision out as soon as it could. For example in a submission to the Health Committee on the original bill People First New Zealand a self-advocacy group for people with an intellectual disability and others expressed their fear that even people who had committed no crime at all could be locked up and that that provision would apply not just to adults but also to children and young people. Such a discriminatory approach has no place in the 21st century and I can assure people that the Green Party would never have supported this bill had those provisions remained in place. 
We welcome changes on the Supplementary Order Paper to the definition of intellectual disability so that it is now in line with the most up to date international standards. It is good to see that the select committee has made it clear that people cannot be defined as intellectually disabled solely because they have a mental disorder personality disorder or a brain injury. We are also pleased that there is now a greater focus on rehabilitation than was originally intended. 
The Green Party looks forward to the passage of this bill into law later today. I hope that the Government will put the necessary resources behind it so that it can fulfil its functions satisfactorily and well. 
JUDY TURNER (United Future) 
: 
 I rise on behalf of United Future in support of this bill which was introduced in 1999. It sets limits on the freedoms of a small but identifiable group of people with an intellectual disability who are in need of compulsory care. 
Intellectual disability is defined as a learning disability that limits day-to-day functioning and skills. Unlike mental illness it cannot be treated. Intellectually disabled folks are permanently impaired with significant deficits in two or more of the following—I list these because even today in the debate it seems that in some members’ minds there is confusion between mental health and intellectual disability—communication; self-care; home living; social skills; use of community services; self-direction; health and safety; reading writing and basic numeracy; leisure; and work. 
The legislation covers two similar groups. The first group is of those who enter compulsory care from the criminal court and who due to impairment require specialised care and attention. The second group is of individuals who are no longer subject to the criminal justice system but who still require compulsory care of some kind. United Future supports the Health Committee’s recommendation to deal separately with individuals who have an intellectual disability but no history with the criminal justice system. 
The new strategy for deinstitutionalising the care of individuals who are intellectually and mentally impaired has meant a difficult time for everybody involved in the transition. Many clients have been successfully reintegrated into the community and now enjoy a quality of life that is vastly improved. However it is also true that a number of recipients have not been able to make that jump and will always need some form of institutional care. It is interesting that on 12 July last year the  
Dominion Post 
 noted the opening of a secure unit at Porirua Hospital. That 10-bed unit is for offenders who have an intellectual disability and it is the first unit to separate intellectually disabled offenders from mentally ill offenders. 
In 1977 when those provisions were mooted it was estimated that nationwide between 50 to 100 people would be subject to the provisions of the proposed legislation. Current figures are unclear but I draw to the attention of the House a speech I gave last week in the general debate regarding the increasingly large numbers of children born with brain damage due to foetal alcohol - related causes. There is growing and convincing evidence that our prisons are full of people with intellectual impairment directly related to foetal alcohol conditions. Even this week I have had contact with the Foetal Alcohol Support Trust which was very worried about the imminent release of a recently diagnosed foetal alcohol syndrome prisoner in relation to where he could be safely housed. That man’s mother was terrified of what could happen. 
That case highlights the need for increasing resources for the diagnosis of these more subtle intellectual impairments and for better resourcing of appropriate care facilities. It is not about turning back the clock but about recognising that the numbers needing compulsory care may be larger than we realise. However United Future welcomes the change in thinking this legislation represents. No longer can people be conveniently managed; instead they are to be viewed as people with rights to quality of life and opportunity to reach potential like everybody else. We are very happy to support this bill. 
DARREN HUGHES (Labour—Otaki) 
: 
 I rise to take a very brief call in support of the Intellectual Disability (Compulsory Care) Bill. I pay a special tribute to Judy Keall my predecessor as member for Otaki who chaired the Health Committee very ably through the process. I am very pleased to see the bill back on the floor of the House. I know that Ruth Dyson will take it through its final passage—and very ably too. 
SANDRA GOUDIE (National—Coromandel) 
: 
 I am very pleased to speak to this bill. I recognise the incredible time effort and dedication of my colleague Dr Lynda Scott and I acknowledge the significant contribution made by a former MP Wyatt Creech who introduced this bill in 1999. My only disappointment is that this bill has languished for some 4 years or so and that the parents who have been concerned for their children who are not covered and protected in the manner they would like to see have seen it languish. 
 They will now be pleased to see that it has come to the forefront. I reiterate my acknowledgement of Dr Lynda Scott and all her fine efforts. 
I also would like to bring up the point that they did recognise the need for resourcing. That is very evident in the fact that we have only a limited number of services available to accommodate the provisions of this bill and those people who will come into its ambit. A lot more funding will be required. We have a shortage of specialists and caregivers. They are underfunded and a lot more training and services will be required to give them the ability to meet the needs and standards required by this bill. 
One of the reasons that this bill was brought into being is because of one Barry Ryder. Looking at some of the press releases regarding what happened to Barry Ryder one of the first things I saw was the statement: “Yesterday the court heard Ryder was institutionalised unable to cope out in the community and had borderline mental retardation. He was committed to Lake Alice Hospital in 1985 after he tried to rape and strangle two boys aged 6 and 7 near Timaru. It was also recognised and acknowledged that he could not be rehabilitated.” People like Barry Ryder would come into the ambit of this bill and have the security and care of the protected environment they need. This bill will provide that. Barry Ryder will then not do what he was doing which was molesting innocent young boys. Every time he was out in the community unsupervised he would offend. 
The judge said the prognosis for Ryder given that he had already received 12 months of treatment was not good. His assessment was that he presented an extremely high risk of reoffending yet not much could be done to make sure he was in a secure environment and not able to reoffend. The existing services that were supposed to provide that protection for the public failed in his regard and this bill will help to fill that gap and address that failure. It provides for the compulsory care of those with intellectual disabilities who because of their lack of understanding anti-social or violent behaviour need compulsory care. 
We have already heard the story of one young man. When he is around 45 and becomes frustrated he will become violent and angry. When people see an angry and violent 45-year-old man they do not necessarily realise that he has the intellect and capabilities of a 5-year-old. How do we deal with someone who is 45 and 6 foot 2? How do we control somebody like that and manage the situation in such a way that that person is not a threat to the public? How do we make sure that those people do not do themselves or anybody else harm? 
Barry Ryder’s family were most concerned about their ability to make sure that their son was provided for as they grew older. He is 45 and they themselves are aging. They know that there will come a time when they are not around and they are concerned about his future care in a secure environment. They are absolutely pleased that the Intellectual Disability (Compulsory Care) Bill is now passing through the House and feel somewhat comforted that their son will be looked after in the future. They believe it looks promising and so are looking forward to having some comfort in their declining years when they will no longer be able to ensure the safety and protection of their son. 
There are other cases including that of a young woman who was confined to police cells in Palmerston North. The judge actually apologised to her family stating that it was clearly unsatisfactory that a young woman in her situation mentally immature at 33 years of age was put into a prison cell. Under this bill that person will be able to be put into a secure and safe environment with support which is the sort of environment that she needs rather than being put into jail. It is not on that people with an intellectual disability come into the ambit of being declared criminals and put into jail. 
In the case of the young man previously mentioned the family were appreciative of the police’s understanding in that regard but that might not always be the case. In the young woman’s case it was late at night she had wandered away from the family property was eventually located by rescue helicopter and transferred to a psychiatric unit but was not admitted. The unit did not take her because she was not declared or considered to be a mental patient. She was a person with an intellectual disability. When she at 33 years of age threw a tantrum—because her capabilities were not the capabilities of a 33-year-old but those of a 5-year-old—the staff could not control her so they called in the police. How do people deal with those sorts of rages? They can deal with them in a more secure and supportive environment and that is what this bill provides. 
I know that a number of families out there will be so thankful knowing that their children—at whatever age—will be in a safe and secure environment when they can no longer look after them. That is what this bill does. It provides them with some comfort and measure of hope that that will happen for their children and that the public including our children will be protected from the likes of Barry Ryder who preyed on young boys at schools. 
I am very pleased to see that National had the foresight to ensure that funding was put aside for this bill. It is an excellent plus and we can only hope that it is still there and ongoing. I thank my colleague Dr Lynda Scott for all her efforts—it has been fantastic—and I acknowledge the efforts of Wyatt Creech in introducing this legislation in 1999. I am disappointed that it has languished for so long. 
DAVID BENSON-POPE (Labour—Dunedin South) 
: 
 I am pleased to rise in support of the Intellectual Disability (Compulsory Care) Bill. I add my congratulations to the members of the current Health Committee and to their predecessors and to Judy Keall in particular. I congratulate those members of the House who discussed this matter in a sensitive and professional way and resisted the political temptation to make cheap gains at the cost of other people’s grief. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 Thank you for the opportunity to speak on this very important Intellectual Disability (Compulsory Care) Bill which is be renamed the Intellectual Disability (Compulsory Care and Rehabilitation) Bill. The very existence of Supplementary Order Paper 160 is an indictment on the increasing arrogance and carelessness of the Labour Government in the way that it has handled what is indeed a very sensitive and important issue. 
In saying that I note that the Supplementary Order Paper appears to have some changes in it that are important and were stressed by the Health Committee back in 1999 and 2001 as being important: for instance the change in the definition of “intellectual disability”. I certainly hope that the Minister the Hon Ruth Dyson will take a call to explain why that particular definition has changed because the select committee went to considerable trouble to ensure that it was reasonably and tightly confined. I believe members wished for a margin of error of about five whereas now it is expressed in a different way. An intelligence quotient is expressed as 70 or less with a confidence level of not less than 75 percent. 
 This is the sort of thing that Mr Benson-Pope must also take seriously. A Supplementary Order Paper has been brought in under urgency without the collaboration and communication that was the spirit of this bill when it was first reported to the select committee and there are some changes. I think it is hugely important that the Minister take a call to clearly explain that sort of change. 
I too would like to pay tribute to the enthusiasm of Judy Keall as chair of the Health Committee. I have mentioned that she has a unique and distinctive way of articulating herself but she was particularly sincere in ensuring that this bill was progressed. Once again there is a huge worry that that was back in 1999 to 2000. I want to refer to a press release of January this year: “Sex offenders bill gathers dust”. The fact of the matter is that once again the Labour Government has not put a priority on a hugely important bill. It has brought it in under urgency with a Supplementary Order Paper that has some significant changes which hopefully the Minister will explain. 
I note that the Intellectual Disability (Compulsory Care) Bill was introduced by National in 1999 in response to concerns that Barry Ryder who has a 17-year history of sexual offending would be released back into the community. It is one of the problems of this very sensitive and difficult area of the mentally and intellectually disabled that the press latches on to the highly spectacular cases but does not concentrate on the detail and the importance of the majority of individuals who are caught up in this legislation. There is also the anguish of the parents of children who are non-offenders but who know that they are a time-bomb in terms of their potential for offending yet there is a lack of adequate facilities to look after them. Again one of the very important and thoughtful contributions made by Wyatt Creech and the National Government was to put aside $50 million to ensure that as this legislation finally came into being there would hopefully be provision to cater for it. 
In terms of the background commentary the importance of the bill is encapsulated by the fact that as introduced it sets out the limits that can be imposed on the freedoms of people who have an intellectual disability and are in need of compulsory care. Prior to 1992 people with an intellectual disability were included in the definition of “mental disorder” under the Mental Health Act of 1969. It was absolutely obvious that there had to be a dramatic catch-up in this legislation which was clearly inappropriate. This bill certainly does that but the huge indictment on the Labour Government is the fact that it has languished for so long. 
I note that the commentary points out that the specific exclusion of people with an intellectual disability does create a legislative gap resulting in limited options being available to the courts for dealing with people with such a disability. For some that has resulted in inappropriate placement in prison mental health services or discharge into the community. Once again I go back to the Simpson report on psychiatric illness within the prison system in New Zealand. It points out just how substantial and serious untreated mental illness is within our prison system and how serious is it that this Labour Government—despite all its rhetoric from the 1990s—has not moved seriously to correct the findings of that extremely important report from Dr Sandy Simpson back in 1999. 
I think it is also important once again to point out the pleas from parents who were submitters to this bill. For instance Andrew and Kathleen Taylor wrote of the problem of lack of adequate resources: “For several years now we as parents of a child with special needs have been encouraged to believe that the care of our children should happen in the communities in which they live. We have been encouraged to embrace ‘mainstreaming’ and ‘inclusion’ in education and leisure. We were promised adequate levels of support. Institutions were a thing of the past. Now it appears that our children can be incarcerated if authorities feel that they ‘appear to pose a risk …’ without them having committed any offence.” They go on to state: “Instead of such a punitive bill we would like to see measures put in place to adequately support parents/caregivers to care for their disabled dependents safely in their own communities. This would be a far less expensive option. With adequate levels of supervision ‘dangerous’ incidents would be extremely rare.” 
I want to end by saying that it was the Hon Phil Goff who 4 years ago said that the nub of this legislation was in providing adequate facilities. That has not happened under this Labour Government and it is high time that this bill has finally appeared before the House. 
The debate having concluded the motion lapsed. 
Amendments recommended by the Health Committee by majority agreed to. 
Bill to proceed. 
Name changed to the Intellectual Disability (Compulsory Care and Rehabilitation) Bill. 
Intellectual Disability (Compulsory Care and Rehabilitation) Bill 
Instruction to CommitteeCWH 
Hon RUTH DYSON (Minister for Disability Issues) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Intellectual Disability (Compulsory Care and Rehabilitation) Bill that it take the bill part by part and consider any schedules as one question. 
Motion agreed to. 
In Committee 
Clause 1 Title 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 It is with pleasure that I take a call on the title which has been changed to the Intellectual Disability (Compulsory Care and Rehabilitation) Bill with the term “rehabilitation” having been added. I have to say while the term “rehabilitation” is used it is difficult sometimes to see how rehabilitation fits in with intellectual disability which is a permanent ongoing condition. What really fits in is support services putting structure and scaffolding around a person’s life so that that person can then behave in a more appropriate manner. 
 I am not sure that that is called rehabilitation; I always think of rehabilitation as helping individuals to engage in new and enriching ways. I suppose that if the amount of support structures necessary can be put around somebody then rehabilitation may be an appropriate term if behaviour can be changed. We know that— 
The CHAIRPERSON (Hon Clem Simich) 
: In this debate could we stick strictly to the clause under discussion? It is the title clause clause 1. Unlike other debate over the last 2 days when we have ranged fairly widely this debate is narrow and must be kept narrow. 
Dr LYNDA SCOTT 
: Yes I have heard that from Chairpersons before who then go on to let everyone else have a wide-ranging debate but I will stick to the title. I am sticking to the title because “rehabilitation” has been added to it. I am talking about the new title of the bill and whether it is appropriate to have “rehabilitation” added by the Supplementary Order Paper to this bill. The title was Intellectual Disability (Compulsory Care) Bill which was very appropriate because that is what this bill is all about. 
The legislation covers those people who have an intellectual disability—I do note that the Minister has changed that definition even though we at the select committee spent hours and hours talking about the definition so we will be asking why it has changed—who are people born with an intellectual disability or who suffer a birth trauma and have an intellectual disability but it does not apply to people who suffer a brain injury for example a traumatic brain injury. They are not covered by this bill. So people with an intellectual disability are covered by this bill and the specific title for this bill needs to cover that. It needs to cover those with intellectual disability because the Mental Health Act no longer does. 
The title is the Intellectual Disability (Compulsory Care and Rehabilitation) Bill. The words “compulsory care” are important because that is what this bill is about. It is about taking those people who have an intellectual disability and who offend. We have taken out the non-offender group which was originally in the bill but these are people who offend and who therefore need compulsory care. It is very sad—extremely sad—to have people who have an intellectual disability being hounded by a community or coming before the law and being put in jail. So the whole point of this bill is to give compulsory care for people who have an intellectual disability in specific circumstances in specific facilities designed for them and with a care package that will be wrapped around them. 
Adding “rehabilitation” to the title relates to the parts of the bill where we have added needs assessment and rehabilitation plans. So having a rehabilitation plan for people can mean that they will be able to be released into community care rather than being in 24-hour permanent locked care. But as we know with the David Stephens case there are some people for whom that will never be able to be the case. Because of their behaviour their lack of anger management and the fact they do not understand the consequences of their actions they will have to be in permanent ongoing compulsory care as identified by the title of this bill. 
I do not think that we should in any way change the title. I have not moved any amendments or substituted anything for this title because it does determine in a clear and defined way what this bill is about. Compulsory care imposes limits on individuals and limits their freedom so that is why a specific Act of Parliament is needed. 
HEATHER ROY (ACT) 
: 
 I will take a short call to back up what Dr Lynda Scott said about the word “Rehabilitation” in the title. I think rehabilitation is a word that is often misunderstood and that in this case we are asking for trouble in a way by including it in the title. In fact I am going to propose an amendment to have the word “Rehabilitation” removed from the title. We will amend the amendment— 
Dr Lynda Scott 
: You are going to amend the amendment? 
HEATHER ROY 
: That is right—so that we move back to the title being the Intellectual Disability (Compulsory Care) Bill which I think describes the intention of this bill much better. Rehabilitation I notice is not defined either in the bill itself or in the Supplementary Order Paper. I would have thought that with its inclusion in the title it should perhaps have been defined. That would have made a good deal of sense. It should have been defined so that we know exactly what it is. 
Intellectual disability of course is a lifelong condition. It is a description of somebody’s intellectual capacity. Rehabilitation implies that somebody can improve from a set position. We know that that is not the case with intellectual disability. When people are disabled the measurement of their disabilities cannot be improved upon. The implication is that people’s behaviour can be improved and that indeed is sometimes the case despite the fact that these people are often functioning at a very low level throughout their lives. But the base from which they operate will never be able to be changed with treatment. Although their behaviour may be modified in a positive way their base condition will see no improvement at all. 
With regard to the title clause we will put an amendment forward; indeed it will be an amendment to amend the amendment. But it is important that in the interests of stipulating what the bill is truly about the word “rehabilitation” is removed from the title. I do not mean by that that we should make no effort with these people. I believe the opposite. These people should be put into facilities that are there specifically to cope with their particular problems. The word “rehabilitation” in the title is a misnomer. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 I am speaking to the title of the Intellectual Disability (Compulsory Care) Bill now to be known as the Intellectual Disability (Compulsory Care and Rehabilitation) Bill. I must say that for slightly different reasons this addition to the Supplementary Order Paper of the term “Rehabilitation” needs to be approached. 
Let us have a look at the “Intellectual Disability” part of the title which was the nub and one of the most important definitions to get right. When we think of that as being the important part of the title we look to the Supplementary Order Paper where there is a change in the definition of “Intellectual Disability”. I go back to the commentary of the Health Committee whose members went to huge efforts to ensure that the meaning of intellectual disability was defined. 
So we need the opportunity of having the Minister in the chair willing to explain the meaning of intellectual disability and why the committee has changed it. It is very important that she does so. The select committee said on the one hand that it had concerns regarding the standard of testing to be used specifically given the narrowness of the definition of intelligence quotient—originally set at 70 or so—but on the other hand it said further that it had considered submissions and that it would be very important effectively to have a margin of error of 5 which would mean a cut-off at an IQ of 75. We go to the Supplementary Order Paper which is highly relevant to the title and we see a change. So it will be important that the Minister does indeed give the Committee an explanation why the select committee has made this fundamentally important change. 
 After all this bill is about being able to define diagnose and care for those with intellectual disabilities which is absolutely related to the title. This is nub of it. The difficulty is that we have a Supplementary Order Paper that has amended the title and that has also amended the definition of “intellectual disability”. 
With regard to the addition of “and rehabilitation” and the amendment to the amendment by Heather Roy of the ACT party I think that in many respects if we go back to what the select committee said about the emphasis on rehabilitation then on the one hand there is no need to have “rehabilitation” in the title—and I agree in that respect—but on the other hand it would be a little churlish of me not to recognise the importance that the select committee placed on rehabilitation. The select committee said there should be explicit recognition of the importance of rehabilitation where possible to ensure that people do not receive custodial care only. 
We have a slight dilemma there. On the one hand we have the Labour Government adding a Supplementary Order Paper under urgency to a bill that has been around for 4 years. Not only has the Government changed the definition of the key words “intellectual disability” in the Supplementary Order Paper but it has also added in the term “and rehabilitation”—quite redundantly and quite unnecessarily because the emphasis has been placed on that in the select committee commentary which points out how absolutely fundamental that is. 
Speaking on the real nub of the title which happens to be the question of the definition of “intellectual disability” I have grave concerns as to the process followed by the Labour Government in bringing in the Supplementary Order Paper without consultation under urgency and changing something that is so fundamentally important. Over many decades there has been a huge debate as to how to accurately define “intellectual disability”. 
PITA PARAONE (NZ First) 
: 
 I want to take a short call to say that although New Zealand First recognises the inclusion of the word “rehabilitation” in the title we accept the comments made by the select committee in its report. One concern I have about its inclusion although I welcome it as part of the title and therefore as part of the bill is that “rehabilitation” as such is not defined. It is certainly not defined in the Supplementary Order Paper. I must commend the Government—given that we have challenged its process so far in terms of the way it has dealt with the amount of legislation this week and in particular the fact that the last debate concerned a Supplementary Order Paper to the tune of 40-odd pages—for this one being reduced to 10 pages. So one can only presume that the Government is starting to see the light and that the introduction of such lengthy Supplementary Order Papers at such late notice is being considered a little bit out of order. 
Even though other parties in the Chamber may want to prolong the debate in looking at the Supplementary Order Paper and at the title in particular I think it is relevant that the word “rehabilitation” be included. If that issue is not addressed—and some people may argue that “rehabilitation” should not be included in this particular bill—I think we are doomed to retain the attitude we have had for far too long in this country and to condemn those who are the subject of this bill to a lifetime of enduring the illnesses they have been afflicted with without any care or concern expressed by the community. Therefore I welcome the inclusion of the word “rehabilitation” in the title. 
SANDRA GOUDIE (National—Coromandel) 
: 
 As I look at the title “Intellectual Disability (Compulsory Care and Rehabilitation) Bill” I think: what about making it the “Intellectual Disability (Compulsory Care and Rehabilitation or Not) Bill”? It must be remembered that rehabilitation will not always be possible. Earlier on I talked about Barry Ryder whose case was a key one in helping to bringing about this bill. It was recognised that Barry Ryder could not necessarily be rehabilitated and the judge said that without doubt he was most likely to reoffend. The first question asked by the parents was about why experts thought that he could ever be rehabilitated. Rehabilitation will not necessarily be an option. Therefore the bill could be called the “Intellectual Disability (Compulsory Care and Rehabilitation or Not) Bill” or the “Rehabilitation Where Applicable Bill”. Rehabilitation is not absolutely always something that can be achieved. I would like to acknowledge our concerns about “rehabilitation” not being defined. I think definition is absolutely necessary and I acknowledge the words of Pita Paraone in recognising that. It is to be hoped that the Minister will ensure a definition is provided perhaps in the form of a Supplementary Order Paper before the bill goes too much further. 
Pressing on with regard to whether “rehabilitation” should be in the title—I see you leaning that way Mr Chairperson—I will stick to the title and explain about rehabilitation not necessarily being achievable. Justice Chisholm in his prognosis for Barry Ryder said: “In my assessment you represent an extremely high risk of reoffending.” When Ryder was unaccompanied and not being supervised he was caught by an adult with a boy in a secluded area by a school with a knife a tube of lubricant and a book about anal intercourse. Ryder has ruined the lives of four boys and the judge has said he will likely reoffend and that it is likely he cannot be rehabilitated. 
I bring members back to the title which is about rehabilitation. That may not necessarily be achieved and I think we need to be realistic about that. Much as we might all like to see people being rehabilitated when they are a danger either to themselves or to the public through no fault of their own but through circumstance bringing it about rehabilitation as identified in the title is not necessarily always achievable. I raised another case earlier about a woman aged 33 who went into violent rages. Because she went into those rages her parents could not find an agency that would care for her. This was a real concern and a problem. I do not know whether that person can be rehabilitated but in terms of the title possibly not. Who knows? The one thing that was of real comfort to the parents was that she did find a secure and safe environment at the Kimberley Centre. That was something they were most appreciative of. They were also appreciative of the expertise of the services that were provided at Kimberley. Any rehabilitation that may have been able to take place would have been provided for at Kimberley and in that case it was a positive but in the case of Barry Ryder it was definitely a very clear negative. Having the word “rehabilitation” in the title is a bit of a concern but because we are so supportive of this bill we will not agonise unduly over the title. As I said before it is to be hoped that a definition for the term “rehabilitation” will be provided in the bill by the Minister before it goes much further. I think it is absolutely necessary that we do have a definition of rehabilitation and we look forward to that being the case. 
STEPHEN FRANKS (ACT) 
: 
 Throughout this bill the Health Committee has inserted references to rehabilitation so that at least the title does reflect what the bill now contains. The reason why I support my colleague Heather Roy’s amendment to omit the word “rehabilitation” from the bill is relatively simple. I am a humble man. I do not like to see Parliament pretending to do something that science and doctors tell us is impossible. It is a little bit like Wellington City setting up a sign outside the airport that says “Earthquake-free Zone”. It is just as useful. Although “rehabilitation” may be a word that everyone likes—and it makes a warm fuzzy feeling for a select committee that was busy sticking warm fuzzy bits into the bill—as I understand it the key thing that distinguishes people who are to be subject to this Act from those who are insane and subject to other provisions is the realisation that they are not capable of rehabilitation and that their illness is a permanent disability. Of course the symptoms can be ameliorated and of course behaviour modification may improve the way in which they are cared for but the criterion has been set because they simply are not capable of rehabilitation or under current medical knowledge there is no prospect of rehabilitation. They will stay with whatever quotient they are given that categorises them in these forms. 
Parliament should not be legislating a scientific nonsense. Of course if we accept the amendment and restore this bill to the more realistic objectives in its title and reject the wishful thinking that has gone into it then there are a number of provisions that would have to follow through. But they too would make the bill more honest. If we take the word “rehabilitation” out of the title we can then go through each of the five or six places where I have seen the word “rehabilitation” inserted and we would no longer have the prospect of some poor caregiver or institution at some stage being required by a judge to give effect to a provision that is incapable of being given effect. As we go through we will see that the plan for care which previously was a care plan now has to be a care and rehabilitation plan. The title is the first place where this nonsense appears. There are a number of clauses where that ridiculous word should be taken out. It is not defined. From my understanding the select committee did not know what it was talking about. It just thought it would be very nice to look pious and well intentioned so it stuck in some references to rehabilitation. 
The select committee’s comments under the heading “Emphasis on rehabilitation” on page 7 of its report are about programmes to meet needs and the recognition of the importance of rehabilitation. We can recognise the importance all we like but if the whole bill is founded on a view that these people are not curable that rehabilitation is not what is done—or maybe it is. This is one of the words that Labour members like to redefine from time to time. It is a little bit like the principles of the Treaty of Waitangi or any of those other slogan words that mean whatever they want them to mean. Rehabilitation once was a respectable word that meant to restore people to the living state that they had previously. These people are going to be restored or rehabilitated to their former condition but the fact is that their former condition was probably worse. They have never had a good state to be rehabilitated to. The word “rehabilitation” is a nonsense and it should not be in this bill. It simply makes the title longer. It is inserted only to make people with woolly minds feel better and it will cause legal problems if anyone takes it seriously. The provisions in which the word “rehabilitation” have been inserted throughout the bill where it is added after the word “care” can mean nothing if this bill is truly to distinguish the state of these people from those who are— 
Edwin Perry 
: What’s your solution? 
STEPHEN FRANKS 
: My solution is simply to take the word out. If we want to have something nice in there we can put in a substantive provision that says people are entitled to all the care programmes that can ameliorate their condition so far as is reasonably practical with the resources available. That is what I think members of the committee probably wanted it to mean. But they did not say that. Instead they plucked out of the air a word that they thought sounded nice stuck it in the title and stuck it throughout the bill. Interestingly in all the criteria for care and rehabilitation plans nowhere does it actually say that a care and rehabilitation plan has to have a plan for rehabilitation. It is just stuck in as a title matter. 
JILL PETTIS (Junior Whip—Labour) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 82 
New Zealand Labour 52; New Zealand First 13; Green Party 9; United Future 8. 
Noes 35 
New Zealand National 27; ACT New Zealand 8. 
Motion agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 160 in the name of the Hon Ruth Dyson to clause 1 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 109 
New Zealand Labour 52; New Zealand National 27; New Zealand First 13; Green Party 9; United Future 8. 
Noes 8 
ACT New Zealand 8. 
Amendment agreed to. 
The question was put that the following amendment in the name of Heather Roy to clause 1 be agreed to: 
to omit the words “and Rehabilitation”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 8 
ACT New Zealand 8. 
Noes 109 
New Zealand Labour 52; New Zealand National 27; New Zealand First 13; Green Party 9; United Future 8. 
Amendment not agreed to and clause 1 as amended agreed to. 
Part 1 Preliminary provisions 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 This part contains some substantial provisions including definitions interpretations and the commencement dates. I want to talk about clause 7 “Meaning of intellectual disability”. We spent a great deal of time discussing this in the Health Committee. We did not want the definition to be too narrow. A definition that is too narrow would mean there were people who were not captured under the provisions of this bill. 
I had amongst my select committee papers an article from  
Truth 
 dated 26 March 1999 that has the headlines “Handicapped flasher hounded” and “Townsfolk gang up on village idiot”. I think that shows us how far we have come in the way we treat people with an intellectual disability because I do not believe those headlines would be used today. The article was about the pretty sad case of a chap called Peter McCallion who had a quite significant intellectual disability. He ended up in prison where he should not have been was accused of all sorts of things he never did and was beaten up severely. The people who had cared for him said: “There just aren’t any places for the Peters of this world.” That is what this bill is all about—making sure there are places for the Peters of this world who have a significant intellectual disability and who come before the law because of behaviour they are not responsible for or who have no anger management and just act out. 
The select committee came up with a new definition for intellectual disability. Rather than defining a person as having an intellectual disability if he or she has an IQ of 70 or below the committee tried to expand the definition by stating under clause 7(1): “A person has an intellectual disability if the person has a permanent impairment that—(a) results in significantly sub-average general intelligence as measured by standard psychometric tests generally used by clinicians; and (b) results in significant deficits as measured by tests generally used by clinicians in at least 2 of the skills listed ...”. The reason that was added to the definition is that somebody may have an IQ that is higher than 70 but be very deficient in certain skills especially social skills. If that happens that person may not be captured in a rigid definition that uses just an intelligence quotient and if that is the case this bill will not be able to be used to have him or her placed in compulsory care or in a permanent facility. Certainly in the case of Peter that is where he needed to be. He needed to be in a place where he could be cared for appropriately. 
Clause 7(2) states: “For the purposes of diagnosing under subsection (1)(a) a person’s general intelligence as significantly sub-average—(a) an intelligence quotient of approximately 70 or less ...” but we said under paragraph (c): “a possible quotient of 75 is the effective maximum at which a person’s intelligence can be diagnosed to be of that kind.” The Minister has a Supplementary Order Paper that takes that quotient of 75 back to 70. Amongst the people I spoke to who work in the intellectual disability and mental health areas there were those who thought it was of concern if the definitions were too rigid. The skills subclause that the select committee put in refers to the ability to communicate self-care home living social skills use of community services self-direction health and safety reading writing and arithmetic and leisure and work. We are talking about people who can actually function in society. I am sure there are quite a few people who do not function in society who do not have an intellectual disability but we are trying to confine the definition under this bill to those who do. So there is concern about that under clause 7. 
Clause 6(2) refers to special-care recipients meaning a person who is liable to be detained in a secure facility under an order made under the Criminal Justice Act. We have just debated the amendments to the Criminal Justice Act from which a new bill was developed—one that we did not support. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 Part 1 does indeed have some very substantial components to it. One has only to go to clause 5 to note that the term “care recipient” is once again defined. I recall Stephen Franks from the ACT party saying that this bill is absolutely inculcated with politically correct terms. One has only to go to the dictionary to note that the noun “patient” means “a person receiving care or treatment”. But oh no the terminology here has to be “care recipient” which is using two words for the price of one. That is very indicative of this Labour Government which is so keen on adding compliance costs and verbiage that signifies very little. 
It is also interesting that the adjective of the term means “having or showing patience”. Certainly when it comes to Part 1 the community has had to show extraordinary patience because after all it was back in 1997 that the courts were saying it was urgent that this bill be progressed. In 1999 under the National Government Wyatt Creech quite rightly introduced the bill to Parliament but under the Labour Government it has taken these many years before finally we have it back before us today. The terminology is highly important and it is once again a reflection of how this Labour Government will use two words instead of one when there is an opportunity to do so. It will sure as hang do exactly that rather than use the time-honoured word that people know and understand—such as “patient” meaning a person receiving care or treatment. 
I too want to focus for a moment on the meaning of the term “intellectual disability”. Once again if one looks at the Supplementary Order Paper the Associate Minister of Health Ruth Dyson has brought in without collaboration and without the consultation that did occur so well in the Health Committee one notices an anomaly. The officials might like to prick up their ears here because I see that the explanatory note of the Supplementary Order Paper talks about the change to the definition of “intellectual disability” and it goes on to say “(that is an intelligence quotient that is expressed as 70 or less and with a confidence level of not less than 75%)”. When one goes to the words in the bill—which I have temporarily mislaid—I think one finds that they talk about a confidence level of not less than 95 percent. Which is correct? 
Hopefully the Minister in the chair the Hon George Hawkins will take a call and sort out what this anomaly is all about. This is a hugely important definition. It is one of the nubs of the bill. In the depths of the night the Government brought in this Supplementary Order Paper which quite clearly has the words “a confidence level of not less than 75%”; yet when we go to the words of the definition in the bill we see that they talk about a confidence level of 95 percent. The Minister cannot have it both ways. It is time he observed proper process particularly when it comes to bills as important as this one. I hope he will take a call on this hugely central definition “intellectual disability” and confess that once again a mistake has been made because he has been sloppy—often there is sloppiness when a Supplementary Order Paper of this substantial note is brought in without consultation—or he will give an explanation of what it means. 
HEATHER ROY (ACT) 
: 
 It gives me pleasure to rise to speak on Part 1. I want to back up Paul Hutchison’s comments about the change to the definition of “intellectual disability”. Although I was not part of the Health Committee which considered this report I am concerned to hear that the committee spent a long time debating what determines whether somebody is intellectually disabled—I suspect the committee had very good advice from the medical profession—yet the definition in Supplementary Order Paper 160 goes back to the original definition. The Government had obviously made up its mind that the definition would be narrow rather than allowing the flexibility that the committee obviously felt was necessary. 
I am pleased to see that Ruth Dyson the Minister responsible for the bill is now back in the chair because I want her to define “rehabilitation”. She will have heard my concerns about the inclusion of the word “rehabilitation” in the bill not because I am opposed to rehabilitation but because it is important particularly for the public and for public expectations to have “rehabilitation” defined so that unrealistic expectations do not become widespread within the community. It is unrealistic to expect the disabled condition of “intellectual disability” to be rehabilitated; obviously that is an impossible task. But if the Minister is talking about behaviour modification of the intellectually disabled to whom the bill is referring that is quite a different matter. As confusion could exist not only among the public but also with some in the medical profession and with judges having to rule on these cases it is important to define clearly what we mean by “rehabilitation”. I ask the Minister to take a call and explain or better still to put forward an amendment so that “rehabilitation” is clearly defined in the bill. I do not think that is an unreasonable request. 
The increasing use of politically correct language in legislation was an issue raised by my colleague Stephen Franks and also by Paul Hutchison just a moment ago. It is appearing more and more in legislation put forward by this Government and is very obvious in this bill. I pick up on Paul Hutchison’s point about the definition of “care recipient”. Once upon a time we talked about “patients”. Somebody receiving medical care of some kind was defined as a “patient”. Certainly the patients seemed happy with that and everybody knew that meant somebody who was receiving treatment or care. That term was changed to “client” and I noticed that Judy Turner used that term when speaking in the second reading. The term “client” in the area of intellectual disability has become the norm of late. When I worked in the medical field as a physiotherapist the people I treated were always “patients”. I never considered them to be “clients”. The word “client” implies the handing over of money in some way the getting of something in return. Now we have moved on to “care recipient”. Again that term has sort of been defined but for the life of me I just cannot understand what was wrong with “patient”. 
Then we see a provision in the Supplementary Order Paper that replaces the term “care recipient” with “peoples”. We seem to have done a complete loop—going from “patient” right through to “peoples”. Likewise clause 6(2) defines “special care recipient” whereas in the past the term was “special patient”. Again I do not know what was wrong with that. It is the terminology used by everybody in the field. To be politically correct we have changed all these terms. 
Another confusing and totally unnecessary term that has crept in is “seclusion”. Supplementary Order Paper 160 amends subclause (5)(c) of clause 4 by omitting the word “isolation” and substituting the word “seclusion” and that change is made in other parts of the bill. Those two words are frequently used intermittently in the health sector. Isolation and seclusion really mean the same thing. The term “isolation” has been used for an awfully long time. I ask the Minister to tell us why we are changing the term “isolation” to “seclusion”. 
SANDRA GOUDIE (National—Coromandel) 
: 
 I am very pleased to stand to speak to Part 1. What comes to mind for me is what these particular parents are thinking as they grow older and as their children grow older. These parents start to worry and become anxious about what they can do to make sure their children are protected when the parents can no longer do that when they are no longer capable of ensuring their children’s ongoing care protection safety and security in a secure and caring environment. When we talk about “children” we are talking about grown children who may be 45 years of age 6 feet 2 inches tall and hugely strong but who have the mental capabilities of a 5-year-old. The overriding concern of those parents is that their children have a safe and caring environment. 
I am looking at the meaning of “facility” and “secure facility” in the bill. Those facilities are what some of the parents are seeking for their children. They want a secure environment for them. It need not be a secure facility in the terms we know such as a hospital; it could be a residential house. But it has to be secure in the terms of this bill. But is that enough? Is it enough to know there is 24-hour care for someone like Barry Ryder when one knows that the system can fail? For those sorts of persons who can be a risk to themselves and to others but more particularly to others the system has failed to ensure that they are in a secure environment. There is the danger of that secure facility not necessarily going to the nth degree. But this bill is here and it is providing a degree of comfort for parents who do have that growing sense of anxiety as they themselves get older. It is a very real concern. I have talked to some of these parents. 
I put some questions to the Minister about what services would be in place to provide secure beds for intellectually disabled people with high and complex needs and for persons who might come within the ambit of this bill. The first 10-bed hospital-level secure unit Te Huia has been established in Wellington and others are going to be established in the main centres. But will that be enough? I put it to the Committee that given some of the speeches we have heard today it will not be enough. For example foetal alcohol syndrome is becoming a recognised problem particularly in prisons. So are 10 beds at Te Huia and maybe eight beds here and 10 beds there going to be enough in the terms of the facilities and secure facilities identified in this bill? How many are we going to end up having and will they be enough to meet the concerns of parents with regard to the provision of a secure and safe environment for their children as they grow older? 
Those parents wonder how their children will fit into these placements. They are somewhat hopeful given the passage of this bill. They are also hopeful about their other concerns around caregivers and care providers—that they will be better paid better trained and better supported. That is a huge concern. It is as important to the care and protection of their children as the provision of secure facilities. We need to have provision for within those facilities care providers and caregivers. It is necessary that there is a holistic approach if one likes to meeting the needs of the individuals within those secure facilities or secure environments. 
I would like to recognise the Hauraki Lifestyle Supported Trust which is in my electorate. It does an excellent job in providing a secure and safe environment for the people in its care. I am incredibly heartened by the heartfelt way in which it provides for the people in its care. I see it as a model and it has been recognised as a model. I want to acknowledge the people involved with it. It is to be hoped that the secure facilities that are identified in this bill do have that sort of support. 
JOHN CARTER (National—Northland) 
: 
 I just want to make a small contribution on this bill. 
Simon Power 
: Nothing this member does is small. 
JOHN CARTER 
: Well OK I want to make a significant contribution. In particular I want to ask the Minister a question. In the dealings that I have as the member of Parliament for Northland I have found that when we come across cases like this often part of the problem is that there are just not enough trained people and resources to provide the services that these people need. I know that the Government has put significant funding aside—and good on it for doing that. We hope that the funding will be enough; I guess we will find out in time whether it is. The Minister may be able to indicate whether she is satisfied that we have enough trained people out there to do the job. When we deal with these people that is often the area where we are limited. If that is the case—and maybe it is not but I suspect that it may be so—how will we go about getting sufficient people into the system to be able to help with regard to these issues? 
Often the resources that are needed to provide for the needs of these people are significant. It is a great shame in some of the dealings that I have that where the argument comes that people need support and help it is actually an issue of going through the system and getting people who are able to give that assistance. The problem is that as a local member of Parliament one makes representations on behalf of somebody gets something looked at get involved with it and makes some progress for that person to the detriment of someone else. That is the sad issue with regard to all of those sorts of things. The question is whether we have sufficient resources. I wanted to make that point—that is do we have enough people with the ability to deal with those issues? I suspect that we do not. I also suspect that we need to put a whole lot of emphasis into making sure we have people who are properly trained to be able to deliver the services that we require as we put this legislation together. I draw to the Minister’s attention that it is one issue that I would like to think we will put a whole lot of focus on as we pass this bill through. We need to make sure that we are not just trying to paint over something and say we have done something so it will all be OK because it may not be. If we just pass a piece of legislation that certainly does not mean it will fix the problem. There is a wider issue out there and I wanted to make that comment. 
The question was put that the amendments set out on Supplementary Order Paper 160 in the name of the Hon Ruth Dyson to Part 1 be agreed to. 
Amendments agreed to and Part 1 as amended agreed to. 
Part 2 Principles and general duties 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 This part covers the principles and general duties. Clause 14 talks about interpreters having to be provided. That is very important when we are talking about someone with an intellectual disability who may have difficulty in communicating anyway. I think that provision brings us back to talking about a definition of normal behaviour and the cultural setting in which it takes place. When any of us travel we are always struck by the different cultural and religious beliefs of the other countries that we travel in. It is important that interpreters are provided to try to get appropriate information. 
We can imagine the situation that occurs if someone is maybe involved in say a car accident and the police turn up and see someone in the car behaving in an unusual manner. That could be because of a head injury that that person has sustained or it could be because he or she has an intellectual disability or has used drugs. The police at the roadside cannot determine what the reason for that behaviour is and people in such situations can sometimes end up in police care where the police have to determine what is causing the behaviour. If we add a language problem to that as well then we have severe difficulty in being able to sort out the cause of somebody’s behaviour. So it is really important that interpreters are provided. 
Under clause 13 we have the statement that the powers are to be exercised with proper respect to a person’s cultural identity and personal beliefs. I am not too sure about the personal beliefs one but certainly the cultural context in which somebody works with his or her language religion and ethical beliefs needs to be taken into account because that may create behaviour that may be unusual to someone of a different cultural belief. Those are some of the clauses that are in this bill. 
We have to look at the individual cases that we have had. I have talked to the police down in Marlborough about the problems they face. The police and our judges deal with the front line and that may also include ambulance staff although ambulance staff probably have more knowledge about intellectual disability than the police sometimes do. But in those situations it is quite difficult to understand why someone is behaving in the way that he or she is. If that person has an intellectual disability then this legislation has to immediately begin to be implemented and that means providing an appropriate assessment of the person and developing a care plan for him or her. 
Under Part 2 we also see the principles governing decisions affecting children and young persons. In the case of people who have an IQ of 70 their intellectual ability remains completely stunted so they do not develop the maturity or social ability to manage in society. It is far easier to be able to manage their care when they are children. It is when a child of 6 then becomes a 6 foot 2 inch man who is extremely strong but remains with the intellectual capacity of a child of 6 that we have had some of the sad cases we have seen in the past that have led to the development of this bill—people like David Stephens and the problems his parents had in coping with him. It is important that decisions affecting children and young persons should where practical be made and implemented within a time frame that is appropriate so that families can move ahead and get a care plan for them. 
Clause 9 talks about secure facilities. 
HEATHER ROY (ACT) 
: 
 I want to take a brief call on this part which is actually quite a small part. Having not been part of the select committee process that went through the whole bill very thoroughly I would like to ask about the area of interpreters. I am not sure what the intention of clause 14(2)(a)(i) is. It states an interpreter is to be provided if “the first or preferred language of the care recipient is Maori or another language other than English;”. The thing that worries me is the use of the word “preferred” particularly as in New Zealand there are people who are obviously very fluent in both English and Maori. I am concerned in particular about the cost that could be incurred especially if an interpreter is required for quite some time. I worry that health dollars may be diverted from where they perhaps should be spent and be spent instead on something like the use of an interpreter when people who are quite capable of being understood in English say that they would prefer to be heard in a completely separate language. I wonder what thought the Health Committee gave to that when it was processing this bill. 
We see that in other areas particularly in the mental health areas where patients under compulsory care—[ 
Interruption 
] Perhaps the Minister would like to take a call and tell me what went behind this measure. I was not part of the select committee process. 
 It was before my time in Parliament. Also I still have not had an answer to my query about the term “rehabilitation”. It is all very well for the Minister to sit there and pass comments to other members of the Committee yet she is not happy to stand up and answer valid queries that I think should be clarified. 
My concern is about the spending of health dollars. I was about to say that in the compulsory care of people with a mental illness the patients are able at every step of the way to appeal the process and use district inspectors to represent them when in fact the doctors presenting the other point of view usually do not have a lawyer representing them. Yet the money that is used for that comes out of the health budget. It comes out of the individual district health board budget for the appeal process when the intention is that the money is to be spent on treating those patients and not on legal bills. 
Clause 14(2)(a)(i) raises a similar concern and all I am asking for is clarification of that small provision. I do not object at all to subclauses 2(a)(ii) and (iii); they seem to be perfectly reasonable. But when somebody who is able to speak English perfectly well says he or she would prefer to be heard in another language I just wonder why that is acceptable. Perhaps the Minister could answer that question for me. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 Part 2 deals with principles and general duties. Once again I cannot help but note in clause 11 the term “care recipient”. I think it is referred to four times in about six lines—which is double the number of words we need. It is good to see the Minister in the chair and she may be able to take a call and explain the genesis of the somewhat redundant and wordy term “care recipient” rather than the use of the term that most people in New Zealand—in fact the world—know which is “patient” to mean a person who is receiving care or treatment. I would be very interested to hear what the Minister does have to say in that regard. She is nodding her head so as she is one of the leaders at the forefront of the politically correct brigade it will be very interesting to hear what she has to say. 
I will go on to clause 12 “Principles governing decisions affecting children and young persons”. Those principles do indeed seem thorough and on the whole I concur with them. There is the point that wherever possible the family whanau hapu iwi and family group of a child or young person should participate in the making of decisions affecting that child or young person and accordingly regard should be had to the views of the family whanau hapu iwi and family group. There is absolutely no doubt about that. The tragedy down in the South Island arose when there was a lack of involvement by the family. It was simply not listened to and a subsequent tragedy occurred when the young man killed his parent in that situation. So undoubtedly that is highly important. 
But one of the questions that hopefully the Minister will take a call on is how practically she will ensure that those ideals are lived up to in reality. How does one provide the service realistically? The Minister was one of a group that in the 1990s called shrilly time and time again for appropriate mental health services and facilities. Yet the reality of today is that we hear every day of the absolute mental health crisis in New Zealand and the lack of facilities. It is indeed an example of the forethought of Wyatt Creech who brought this bill into the House that provision was made for $50 million for both this bill and the Criminal Justice Amendment Bill (No 7) so that there would be money earmarked to ensure that appropriate facilities were there. However in reality we do not see that and I would be very interested if the Minister would take a call on that point. 
I move on to clause 13 “Powers to be exercised with proper respect for cultural identity and personal beliefs”. Again it is fine and appropriate to say that it is vital that proceedings are conducted with proper respect for the care recipient’s cultural and ethnic identity language and religious or ethical beliefs. I remember very well when I was a consultant at one of the hospitals and a woman from Iraq came in. She was a doctor and there happened to be a senior doctor from Iraq in attendance. As a male gynaecologist I deferred to that individual to take the woman’s history and carry out the treatment—something I normally do not do. As it happened the Iraqi senior doctor said the woman should be taken down to an operating theatre but just beforehand she called me to say that she was caught up in the emergency department and to ask me to do the operation. I went in only to find that a totally inappropriate operation had been ordered and the woman was anaesthetised. That operation was ordered by an overseas senior doctor whom I had organised to look after another Iraqi doctor. So in practice the reality of ensuring that cultural sensitivity does take place is very difficult. 
JOHN CARTER (National—Northland) 
: 
 I want to take a call in order to ask the Minister to take a call with regard to clause 12 “Principles governing decisions affecting children and young persons”. 
Hon John Tamihere 
: I raise a point of order Mr Chairperson. My point of order is with regard to Standing Order 35(1): “A party must inform the Speaker of—(b) the identity of its leader and other office holders”. We are led to believe that there has been a change in the leadership of one political party and we ask whether the Chair or the Speaker has been advised. Could you confirm that the leader of the National Party has changed this afternoon? I think members are entitled to know. 
The CHAIRPERSON (Hon Clem Simich) 
: That is not a point of order. 
JOHN CARTER 
: If Mr Tamihere is trying to be humorous he should learn how to be humorous. People like me can be humorous but some people cannot. 
The issue that concerns me is that when I look at clause 12 I think it is probably a take-off. Someone who is more familiar with the bill than I am may be able to help me. The structure in the clause is the same sort of structure we have with the Department of Child Youth and Family Services for example. I guess it is our consultation structure. I imagine that if the wording is not exactly the same it is probably similar to the wording we have in other legislation. 
I come back to the point I made earlier on in Part 1 about how we will provide services and facilities to make sure that consultation happens. If the Minister is going to be relying on the Department of Child Youth and Family Services for example to make sure that those consultations etc. take place with families whanau hapu and iwi then I have serious concerns. We all know both currently and indeed from history going back over a number of months and years that the service is not so flash. So the Minister might care to take a call to assure the Committee that she has in mind some other department organisation or system to provide the service set down here under clause 12. We want to be assured of that because as the Minister knows we are supporting this bill. 
Sitting suspended from 1 p.m. to 2 p.m. 
Debate interrupted. 
Visitors 
Major-General ImadMaayar 
The CHAIRPERSON (H V Ross Robertson) 
: I have much pleasure in informing members that Major-General ImadMaayar a member of the Jordanian Parliament is present in the gallery. I am sure that members would wish that he be welcomed. 
Intellectual Disability (Compulsory Care and rehabilitation) Bill 
In Committee 
Debate resumed. 
Part 2 Principles and general duties ( 
continued 
)  
JOHN CARTER (National—Northland) 
: 
 I know that the members in the Chamber over lunch were worried that I would not take the extra 2 minutes and they have come down just to encourage me to do so. I am pleased to be able to share with them the fount of knowledge I have on this particular issue. What is really important is that I know that this Minister having listened and gained an understanding of the issue I was raising before dinner will have gone away and spoken with her officials and she will probably want to take the next call to answer the questions. I am sure; I myself am absolutely convinced as I think are members on this side—but I can see from the look on the faces that the others over there are not quite so convinced. 
Hon Ruth Dyson 
: The member is probably backing Bill English as well. 
JOHN CARTER 
: Absolutely! The whole of New Zealand is. That is the good thing. The whole of New Zealand is backing Bill English as the next Prime Minister. Let us get that very clear. Life is just getting better and better—but back to the bill before the Chairman brings me back to the bill. 
There is a point I want to make about clause 12 and I was asking the Minister before lunch whether we have the resources to carry out this sort of gathering—the discussions the family group conferences etc. If we will be relying on the Department of Child Youth and Family Services to provide the service then I say that we are in trouble. If the Minister has some other idea on how we are going to provide the service then that is fantastic and I hope she will assure the Committee of the system that she will provide. This is a very important part of this legislation. The families have a right to know what is going on. They have a right to be able to discuss amongst themselves the things that they want to see for the people we are dealing with. They have a right to be consulted and involved. Of course the individuals themselves also do. It is good that we are setting this system up having taken it from previous legislation but we want to make sure that it works. We want to be absolutely assured that some of the resources the taxpayer funding that the Government is putting aside will be spent on making sure that this service and this facility is not only just written here in the legislation but is real and meaningful. Otherwise quite honestly we have wasted our time in discussing and debating and passing this legislation. I hope the Minister will take the next call and can give the Committee the assurance that she has something in mind to allow us to have these services delivered. 
GEORGINA BEYER (Labour—Wairarapa) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 69 
New Zealand Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Motion agreed to. 
Part 2 agreed to. 
Part 3 Needs assessments and care and rehabilitation plans 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 Part 3 discusses needs assessment and care and rehabilitation plans assessment and care and rehabilitation needs care and rehabilitation plans and case conferences. The purpose of it is to ensure that when somebody with an intellectual disability ends up before the courts or has behaviour that looks like they may end up before the courts—they may engage in what is considered criminal behaviour breaking the laws of the land even though they do not understand the implications of that because of their intellectual disability—assessment care and rehabilitation needs can be met. The behaviour of a great many of those people can be managed if appropriate care and support is put around them. Often people get angry only when they cannot understand what is happening in their environment and they are frustrated. Appropriate management of behaviour can be achieved. 
In this bill originally there were two groups: those who had committed an offence and had broken the law and the non-offender group. It was felt that people like David Stephens were in the non-offender group initially and if a care plan had been able to be put around him then and if he could have been contained in a secure environment then he would not have gone on to the offender group. We had a lot of representation from disability groups on this issue. They stated that they did not feel we could put in that sort of obligation and take away the rights of somebody who has an intellectual disability just because we think they might have behaviour that will cause them to break the law. It was felt that that was unacceptable and that was taken out. But it has not stopped the needs assessment and care and rehabilitation plans being able to be implemented for people whom we think may develop in that way and not be able to be managed in a normal community environment. 
The purpose of a needs assessment has been that every person who is a care recipient under an order under the Criminal Justice Act because they have committed an offence will have a care plan decided by the people who will be caring for them. That involves talking to the caregivers and also to the families involved in the person’s care. A needs assessment looks at the behaviour a person has had what is driving that sort of behaviour and what one can do to provide a care and rehabilitation plan. We did have a debate before about whether “rehabilitation” is the right term because rehabilitation means to a lot of people the individual changing behaviour whereas actually rehabilitation plans are more about changing the behaviour of people around someone with an intellectual disability so that they do not get into a lose-lose situation and so that they do not get into a corner where their only out is to hit somebody. The reason we need specialised carers to be able to look after people who have an intellectual disability and also have committed an offence is that they need to know how to manage anger. They need to know how to manage someone who is frustrated who may not be able to communicate and who will act out if they are unhappy. There does need to be those people who are specifically trained to be able to manage this type of care. 
I am pleased to say that this bill was a National Government bill when we were in Government and it had money with it. Those 24-hour intensive care plans and the training of care professionals have all happened because of National. We put the money with this bill to make sure that we did not just lump a whole lot of compliance costs out there into the community for those that are already caring. We put in money to develop services. The one thing that has not developed fast enough—probably because it has taken 4 years for this bill to reach this point today—is inpatient care. We do not have the inpatient care facilities—the really secure facilities. I know there was one being built at Porirua Hospital to contain people who have an intellectual disability and severe behavioural abnormalities that bring them before the courts. I believe that the Mason unit in Auckland is also having one developed. It is important that we get on with those because although small in number there are those with an intellectual disability who do absolutely wreak havoc—as we see if we look at the Ryder case—in the community. 
SANDRA GOUDIE (National—Coromandel) 
: 
 Again I acknowledge the fine efforts of my colleague Dr Lynda Scott and I acknowledge Wyatt Creech who introduced this legislation in 1999. They made sure that funding was put aside for that purpose and it is absolutely critical that we do have people who are trained in this field. It is vitally important that diagnoses and needs assessments are done appropriately and specifically to the individual. That is hugely important to the parents and to the welfare guardians of people with intellectual disabilities who are being assessed within the ambit of this bill. Funding is absolutely critical in ensuring that we do have the trained personnel and the specialists necessary to make those assessments. One person has made a substantial submission in that regard and has some concern about the need to ensure that there is ongoing funding for people such as service providers and caregivers and to make sure that they are appropriately trained and can handle those difficult behaviours. 
Certainly there needs to be a secure environment for people like Barry Ryder who need to have an eye kept on them for 24 hours. The moment one takes one’s eye off someone like Barry Ryder he will reoffend. That was the opinion of the judge and that was the concern of many of the parents of victims who were so traumatised by him when he went out into the community. His assessment was done and unfortunately at that time there were not the provisions that this legislation will provide. It is absolutely imperative that we have the funding necessary to train people to do those appropriate needs assessments and this bill will certainly make sure that people like Barry Ryder will not be out in our communities and will not pose a danger either to themselves or more particularly in Barry Ryder’s case to others. 
Parents of 45-year-old persons who are like children and are 6 foot 2 and incredibly strong will also be comforted by knowing that their needs assessment of their children will be accurate and that they will have the care and attention that is needed. Although the families are required to be involved with all of the assessments etc. I did not see very clearly where welfare guardians are incorporated in the legislation except in clause 21 which states: “During the needs assessment process the co-ordinator must make all reasonable efforts ...” and I just wonder what that means. I would hope that they would go to the nth degree to make every single effort to ensure that welfare guardians are contacted and involved in the needs assessment process because they have a particular understanding and knowledge of the care recipient—the new term—and it is absolutely imperative that they be involved in that needs assessment process. They are particularly concerned about the ongoing care and protection of their charges if they are not their biological children. 
I also draw members’ attention to clause 23 “Cultural assessment”. Another member of the House Stephen Franks expressed some concern about cultural assessment and I think there could have been more appropriate wording. Clause 23(2) states: “If following the assessment under subsection (1) the co-ordinator considers that the care recipient is Maori …”— more appropriate wording would have been “considers that the care recipient is of particular ethnicity and the care recipient agrees with that assessment the co-ordinator must try to obtain the views of any suitable person”—rather than just any suitable Maori person—“or organisation concerned with or interested in the care of persons who have an intellectual disability from within that particular ethnicity.” It is important that we look at the range of ethnicity that exists. 
HEATHER ROY (ACT) 
: 
 Many parts of Part 3 I would like to support. I feel they will make a positive contribution to the care of the intellectually disabled particularly in relation to compulsory care. I refer in particular to clause 21 which states that when discussing the needs assessment the coordinator is to consult with persons concerned with the welfare of the care recipient. That is much needed. The families must be involved as some of my National Party colleagues have pointed out. Clause 21 also refers to the need to consult with the welfare guardians of the patient—I must say I still have a great deal of difficulty with the term “care recipient” which does not exactly roll off one’s tongue. But the intention of that clause is I think very good. 
But I would like to speak particularly to clause 23 and I thank Sandra Goudie for mentioning it now. In his second reading speech Stephen Franks talked at length about the cultural assessment aspects within this bill; and clause 23 brings out the point I want to make particularly. Sandra Goudie did read out subclause (1): “The co-ordinator must try to identify the care recipient’s culture ethnicity language and any religious or ethical beliefs.” It is very sad in this day and age that we have to legislate for things of this nature. Coordinators particularly clinicians have a lot of training now in cultural aspects of care and many—most in fact now—have incorporated those features into the assessments that they do on all patients not just the intellectually disabled ones. Certainly in the area of mental illness this is now common practice and I find it extremely sad to think that we need to specifically spell out that we must take into account factors that might be very important in people’s lives. 
I refer now to subclauses (2) and (3) of clause 23 and I ask the Minister whether she could tell us—I am not living in great hope because she seems to be studiously ignoring any other requests I have made for an explanation—why in fact Maori have been singled out in this clause. Subclause (1) mentions different cultures and ethnicities but in subclauses (2) and (3) only Maori are singled out. Is there something we are missing? Is it only Maori who actually have cultural expectations and important cultural aspects that should be considered? What about Samoans and other Pacific Islanders? What about Asians? Counties-Manukau now has patient advocates and interpreters for the Asian communities. Do Asians not count when it comes to intellectual disability? Are their needs not as great as anybody else’s? I would like to know why they have not been specified. 
Sandra Goudie made a very good point. She said that ethnicity should be referred to generally not by a specific ethnic group or breakdown. That is a very good point. As a result of that I just cannot accept this clause as it stands and I have put forward an amendment to have it omitted from the bill completely. If it were reworded the way Sandra Goudie explained it perhaps it should be included and maybe she would like to put forward an amendment. I would have found that much more acceptable but if this clause is to stand as it currently is then ACT New Zealand will not be supporting it—we will ask for it to be omitted—and we will not support this part if in fact it stays in the bill. I say that with sadness because I feel that other clauses in this part do deal with valid concerns. 
I ask all parties to think about legislation of all sorts that has been brought before the House of late. Cultural assessment of all sorts has become a trend with this Government. It is becoming a very big part of its bills and also we are seeing the specific singling out of Maori. We should in this country have one law for all people not race-based law. What we are seeing here is again a perpetuation of the push towards the promotion the singling out of separate ethnic groups within our society. What that does in effect is cause separatism not a united New Zealand. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 Part 3 “Needs assessment and care and rehabilitation plans” is certainly one of the very important parts of this bill which by and large I do support. The select committee put great emphasis on rehabilitation. That was explicitly stated in the commentary because members said during the hearing of submissions examples were brought to the attention of the committee of people with challenging behaviour which often reflected poor management and uncertain environment: “If the person is not receiving proper care they will possibly become a danger to themselves and/or other people.” Clearly this part of the bill is extremely important. The commentary goes on to state: “We believe there should be explicit recognition of the importance of rehabilitation where possible to ensure that people do not receive custodial care only.” 
Clause 15 “Needs assessments required for certain care recipients” is fairly prescriptively spelt out. There is always the great danger in this sort of legislation of being overly prescriptive and I want shortly to take up the point of the cultural assessment provisions because that is prescription gone berserk in this politically correct world. Once again this part has been infiltrated by the term “care recipient”. Most people throughout the world who look to the English language to contain relatively simple clear meaning are perplexed as to why we have to double up the verbiage and make it much more obscure but oh no the Labour Government insists on that sort of somewhat inane and totally unnecessary nomenclature. 
Nevertheless I absolutely agree with clause 19 “Maximum period for needs assessment and preparation of care and rehabilitation plan”. It is good to see a time limit put on that sort of thing which is so clearly important. 
Hon Rick Barker 
: What’s the time limit for Bill? 
Dr PAUL HUTCHISON 
: There was an interjection by the member for Tukituki over there. Is the member speaking specifically about the Intellectual Disability (Compulsory Care and Rehabilitation) Bill? I certainly hope he is. Clause 19(1) states: “The process of assessing the needs of a care recipient and preparing his or her care and rehabilitation plan must be completed as quickly as practicable.” Fortunately subclause (2) states: “The process referred to ... may not continue for longer than 30 days”. I wonder whether the Minister will take a call and say what will happen if it is not completed within 30 days. It is very important to have time limits explicitly put into legislation like this because in reality it is over that period of initial assessment and preparation of a plan that some disastrous and avoidable tragedies have occurred. 
Again one wonders why on a bill that has been talked about since 1997 and that came into the House in 1999 and is finally before the Committee under urgency at the end of 2003 the Labour Party has suddenly come to its senses and realised that time limits are important. If only it could have done so with regard to the bill itself. 
To go on to clause 23 “Cultural assessment” I cannot but agree wholeheartedly with the points that both Sandra Goudie and Heather Roy have made in terms of the extraordinary length to which the Labour Government is determined to try to legislate in such areas as culture ethnicity language and any religious or ethical beliefs. It seems to me that we live in a day and age— 
DAVID BENSON-POPE (Senior Whip—Labour) 
: 
 I move  
That the question be now put 
. 
Motion agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 160 in the name of the Hon Ruth Dyson to Part 3 be agreed to. 
Amendments agreed to. 
The question was put that the following amendment in the name of Heather Roy to clause 23 be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 35 
New Zealand National 27; ACT New Zealand 8. 
Noes 82 
New Zealand Labour 52; New Zealand First 13; Green Party 9; United Future 8. 
Amendment not agreed to. 
A party vote was called for on the question  
That Part 3 as amended be agreed to. 
Ayes 109 
New Zealand Labour 52; New Zealand National 27; New Zealand First 13; Green Party 9; United Future 8. 
Noes 8 
ACT New Zealand 8. 
Part 3 as amended agreed to. 
Part 4 Compulsory care and rehabilitation of inmates and former special patients 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 Clause 29 provides for the assessment of inmates and former special patients. Subclause (1) states: “A superintendent of a prison may apply to the co-ordinator to have an inmate assessed under this subpart if the superintendent has reasonable grounds for believing that the inmate has an intellectual disability.” One of the problems in that is talking about people who have an intellectual disability people who have a mental illness and people who have committed offences. Those situations can all go together: just because somebody has an intellectual disability does not mean that that person cannot have a mental illness and vice versa. 
Sometimes that makes it very difficult to determine the level of care and where that person should most appropriately be placed. Some people end up in prison and it is not really recognised that they have an intellectual disability until they get into that strongly supervised environment. At that point the superintendent can ask for an appropriate assessment of those prisoners so that they can get the appropriate level of care. Until this bill is passed it is not possible to put someone from a prison into an intellectual-disability compulsory-care situation because we need the legislative framework to be able to do that. 
 There has also been concern for those who have been in the Kimberley Centre and Braemar Hospital which were psychopaedic hospitals where a lot of children have been placed who then grew into adults. Having those people placed in the community has been a very slow process because the hard end of the process has been reached—placing those who have very high complex needs and challenging behaviours. 
It is good to see this bill here today because the Health Committee reported it back in April 2001. It could be said that that is only 2½ years but it is a very long time to wait for legislation so that the services can be developed around it and facilities built to care for people with behavioural problems bad enough to land them before the courts or in prison. The Rt Hon Wyatt Creech who was Minister of Health at the time this bill was promoted and during the first stages of its passage through Parliament earmarked $20 million for its development. The Health Funding Authority—which to its detriment this Government merrily scrapped; instead setting up 21 district health boards which are all running over budget and developing 21 different levels of care throughout the country—initiated a service development process that included the development of best-practice indicators for the specialist support of people with high and complex behavioural needs. 
That is what needs to happen. There needs to be specialists who can arrange appropriate assessments for people who are considered to have an intellectual disability and if necessary ensure that the proposed care recipient stays within a facility. If a compulsory-care order is to be imposed there needs to be a determination when an assessment and examination is undertaken that the person has an intellectual disability. Under clause 32 on finishing the assessment of the proposed care recipient the specialist assessor or assessors sends a report of the results through to the courts. 
It is important that we understand the differences between those who actually do the assessments and who the most appropriate people are to do them. If the condition is a mental health one then it should be a psychiatrist because the appropriate level of care for people who have committed offences is an appropriate specialist. There was quite a bit of debate in the select committee about the most appropriate people to do assessments of intellectual disability and psychologists were considered. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 Clearly Part 4 is again getting into the machinery and teeth of this bill because it deals with the compulsory care and rehabilitation of inmates and former special patients. I note that clause 29 refers particularly to “Application for assessment of inmate and former special patients”. I am once again reminded of the work done by Dr Sandy Simpson one of New Zealand’s most eminent psychiatrists back in 1999. He really pointed out for the first time the enormity of the problem of psychiatric patients and those with intellectual disabilities—or a combination of both—within our penal system. Unfortunately it is a very real problem that neither the mental health facilities available in New Zealand nor its prison system have been able to cope with at any stage. It is a huge problem it does require focus and maybe the Minister will take a call and for a moment outline what she is planning to do to bring this issue forward because it is a very serious problem for New Zealand and certainly requires to be dealt with. 
However Part 4 does attempt to provide a mechanism whereby inmates or former special patients can apply for assessment. It is a fairly rigorous process and by its very nature it must be. In fact every application under clause 29 must be accompanied by a certificate from a person who is either a medical practitioner or a psychologist and who has examined the person to be assessed within 3 days immediately before the date of application. Again the time sequence is absolutely all-important. 
I am a little concerned in that I understood earlier on that the Royal Australasian College of Psychiatrists did advocate that there be either two psychiatrists or—in the case of an intellectually disabled individual—a psychologist making sure that the findings are appropriately peer-reviewed but I do not know whether this provision actually ensures that that happens. A lot of this assessment work can be extremely hard to be objective in and I think there is considerable use in having peer review and quality control mechanisms in place all the time to ensure that these assessments are carried out expertly and also within time. 
I refer to clause 34 where once again “Timing for and place of assessment” is emphasised. In fact the assessment of a proposed care recipient must take place within 7 days after the receipt of the application under section 29. In many respects it would be better to emphasise that the assessment should take place just as soon as possible and not necessarily within 7 days. As I mentioned earlier with the practical delays that inevitably occur from time to time preventable tragedies have often occurred. Rather than putting it the way it is—“within 7 days”—I think there would be some sense in having those time limits very much directed towards efficiency and expediency throughout. 
I note in clause 36 “The fact that an inmate who is charged with or convicted of an offence is also a proposed care recipient or a care recipient”—and my word there are those two terms again; four words for the price of two; they just seem to pop up all over the place with this politically correct Government—“does not—(a) prevent the inmate from being taken to—(i) the trial or hearing of that offence; or (ii) any sentencing for that offence;”. 
The question was put that the amendments set out on Supplementary Order Paper 160 in the name of the Hon Ruth Dyson to Part 4 be agreed to. 
Amendments agreed to and Part 4 as amended agreed to. 
Part 5 Status and rights of care recipients 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 Under Part 5 “Status and rights of care recipients” we are looking at the requirements to accept care. We are talking about taking away the rights of somebody who is being compulsorily cared for and entrusted to a care manager so it is important that care recipients are consumers under the Code of Health and Disability Services Consumers’ Rights. Just because those people are under a compulsory treatment order does not mean that they do not have the same rights as any other patient to be treated with care and respect and given an appropriate level of services. 
Many clients with high and complex behavioural support needs may be able to be managed in the community. The aim has always been to have the least restrictive environment for those patients. However we know that there are some who need to be in a restricted environment so it is a matter of getting the balance right—assessing when a care recipient needs to be under much tighter and more restrictive care and when he or she with support services can return to a community setting. 
We see that balance between the rights of individuals and their families and the rights of the community to be protected in the area of mental health as well. It is always a balancing act to try to get those rights in the right balance. Part 5 talks about the rights of care recipients but we must not forget the rights of the community to be protected. The Barry Ryder case of course was an extreme example in which young boys’ lives were tragically ruined by one person who needed to be in a restricted environment. That is why we need to see this bill progressing today and I will be pleased when we have the third reading and it becomes law. However people under compulsory-care orders have a right to medical treatment. 
We talked quite a bit in the Health Committee about how somebody could liaise with his or her family. The fact is that there will not be a huge number of those sorts of care facilities for people who need a restricted environment so people are likely to be cared for in a place away from their families. We talked about their rights to use the telephone to legal advice to company and to receive information from their families. Those people also have the right to communicate with others whether that is the Health and Disability Commissioner district inspectors their own lawyers their own doctors or specialist assessors from whom they have sought a second opinion about their condition. The care recipient will probably not be the person asking for that—it is much more likely to be his or her family. It is also important that the people caring for someone in a restricted environment have the ability to manage their care so this bill involves the rights of the carers as well as the rights of the individuals cared for. 
There are sizable specific powers over care recipients in this section. In very specific situations they can be put into isolation if their behaviour deteriorates out of control and they are a danger to themselves or others. A care manager may isolate care recipients if it is necessary to prevent those persons doing themselves or others harm. But there will be strict guidelines on how that can happen. Clause 61 talks about the restraint of a care recipient. Restraint must be used only on very rare occasions but sometimes it is needed and a care manager may restrain a care recipient if it is necessary to prevent that person endangering the health and safety of himself or herself seriously damaging property or seriously compromising the care and well-being of others. 
SANDRA GOUDIE (National—Coromandel) 
: 
 I turn to clauses 63 and 64 which refer to the placement of care recipients. As we have already covered Part 4 I remind members that care recipients can be placed within a mental facility if no other facility is available for them at the time. That needs to be recognised because if the Ministry of Health also accepts responsibility for removing people from safe care it must also admit responsibility for the outcome. So if there are no purpose-built or professionally staffed facilities other than mental health facilities those are the facilities that will have to accommodate care recipients. It is to be hoped that we will have an adequate number of facilities available for the purpose that this bill intends. 
I would now like to draw members’ attention to clause 65 which refers to when a care manager may grant leave. This is where it starts to get a little bit confusing in respect of the definitions for care recipient and special care recipient which are used quite a lot in the legislation. It would seem that the definitions are not too dissimilar. The care manager may grant leave for a 2-week period. They can go on holiday. I look at the case of Barry Ryder and I am thinking: are we going to send Barry Ryder on holiday? It would certainly have to be a supervised holiday because it would be absolutely atrocious to give people like Barry Ryder a 2-week holiday. I can see clause 65 being the area that could cause us some problems. There could be a failure in the system that could cause us problems and more of the sorts of things that happened with people like Barry Ryder. As we are aware and as I have mentioned previously on a number of occasions the judge said that Barry Ryder was likely to reoffend and clearly whenever he went out into the community without supervision for any period of time he went out to reoffend. He could not help himself. He was not a person who could be rehabilitated to any degree in order to provide the necessary level of safety and comfort for the community. So clause 65 “Care manager may grant leave” is a concern. It is to be hoped that before that leave is granted a substantial amount of consultation will take place with all parties including the welfare guardian. I am sure that there will be some concern about that. 
The Minister may also authorise leave for special care recipients. Again while I am sure all due care would be taken I see that as an area where there may be a substantial shortfall and where the real close care and security of not only the care recipient but also the public at large could be put severely at risk. We have seen that in the case of Barry Ryder. He was supposed to have been monitored and supervised but he was not monitored and supervised to the degree necessary and he offended to quite a horrific degree. So I think it is absolutely vital that in making any of those determinations about leave—where the care manager is going to grant leave for whatever purpose—cognisance is given to the absolute safety of all the persons involved be they the care recipient the service providers the caregivers or the public at large. That is absolutely vital. 
I would like to go back to the placement of care recipients. It is to be hoped that there will be sufficient accommodation for care recipients. We are closing down a lot of institutions—such places as the Kimberley Centre. We can see that Kimberley has deteriorated to quite a degree but I understand— 
Ron Mark 
: Deliberately. 
SANDRA GOUDIE 
: Yes deliberately. 
Ron Mark 
: Deferred maintenance. 
SANDRA GOUDIE 
: Absolutely! But when we look at Kimberley its grounds and its environment we see that it really is a community within itself. That I think is a vision and it could be a really good vision for a secure environment. 
Hon KEN SHIRLEY (Deputy Leader—ACT) 
: 
 I have a very specific concern with this part which I have just picked up. I was not on the Health Committee and I have not been in the debate until very recently. I refer members to clause 57(2) because I have some real concern with that provision. I think we have a problem that has been overlooked and I ask the Minister in the chair to consider it. Subclause (2) states: “If there are reasonable grounds for believing that the receipt by or the dispatch on behalf of a care recipient of any written communication or other item could be detrimental to the interests and care of the care recipient or of other persons the care manager may direct that the communication or item be checked; but a direction to check communications or items sent to the care recipient requires the approval of the co-ordinator.” 
 That is fair enough. I think that is a very appropriate measure. What really concerns me is subclause (3) because it states: “Subsection (2) does not apply to a written communication or other item sent by or on behalf of or addressed to any lawyer of the care recipient.” My point is that we understand what is intended here. It is very important that the patient or care recipient has the right to communicate with a lawyer but it could well be suspected that the care recipient wanted to cause the lawyer harm and under the way this is worded we could not check on the item. We could not do that search. I am sorry if this is— 
John Carter 
: The lawyer of the care recipient. 
Hon KEN SHIRLEY 
: No it says that— 
John Carter 
: Any lawyer of the care recipient. 
Hon KEN SHIRLEY 
: Yes that is right. It could well be that the care recipient had malicious intent to the lawyer. That is not an uncommon situation. It could well be that the institution suspected it yet under this bill the item could not be checked prior to dispatch. Perhaps the Minister could explain what is intended. Perhaps I am reading it wrong but at first glance to me there seems to be a loophole that is quite serious and needs reconsideration. That is the concern I have and the main reason I took this call was to make sure that we are not passing with all best intentions something that would be very unhelpful and inappropriate. 
The question was put that the amendments set out on Supplementary Order Paper 160 in the name of Hon Ruth Dyson to Part 5 be agreed to. 
Amendments agreed to. 
Part 5 as amended agreed to. 
JOHN CARTER (Senior Whip—National) 
: 
 I wonder now that we have dealt with the substantive part of the bill and the rest is more the machinery part whether the Committee might consider giving leave for us to consider the balance of the parts as one. I seek leave for that to happen and if members object then of course they can do so. 
The CHAIRPERSON (H V Ross Robertson) 
: Is there any objection to that course of action being taken regarding Parts 6 to 11? There is no objection. 
Parts 6 to 11 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 In speaking to Parts 6 to 11 although the substantial part of the bill may have been dealt with these other parts of the bill are pretty important. They deal with reviews of conditions and the status of care recipients. Part 7 “Inspections and inquiries” is a hugely important part in terms of quality control and also deals with complaints about breaches of rights and inquiries by district inspectors. Then we go on to Part 8 “Authority to take and detain care recipients”. Subpart 2 “Inquiry by High Court Judge”— 
Hon Ruth Dyson 
: It is Subpart 2 in Part 7. 
Dr PAUL HUTCHISON 
: Absolutely that is quite right. I do not want to be too tedious in the way I go through this but I point out that Part 7 is in two parts—Subpart 1 “Inspections investigations and inquiries by district inspectors” and Subpart 2 as the Minister quite rightly pointed out deals with inquiries by a High Court judge. 
Part 8 is “Authority to take and detain care recipients” “Authority to detain under court orders” and “Authority to take care recipients who escape or disobey court orders”—I would like to make some comments about that in a moment. Part 9 has mainly procedural provisions such as which court to go to and it is about the jurisdiction of the Family Court which is all-important in many respects. Part 10 refers to “Relationships with other Acts” because this bill—along with the Criminal Justice Amendment Bill (No 7)—is integrally related to a variety of other Acts including orders under the Protection of Personal and Property Rights Act orders under the Children Young Persons and Their Families Act and certain orders under the Criminal Justice Act which prevail over orders under this Act. There are a lot of interrelated connections all inextricably linked up. 
Part 11 refers to “Administration”. One would hope that administration under this Labour Government would be efficient and have timelines with it but sadly as we have seen right throughout in the very way that this bill was brought to Parliament—it has “Legislative History 5 October 1999” on the back and here we are on 21 October 2003—the Labour Government has allowed this highly important very necessary legislation to wallow then suddenly under urgency it has finally brought it before the House. So there is some number of very important parts that we are taking as one. 
I want to comment on the “Authority to take and detain care recipients” in Part 8 and on what was required because there are some very important implications in clause 109 “Authority to admit and detain under orders”. It states: “A care manager has authority—(a) to admit a care recipient to a facility in accordance with the care recipient’s court order or a notice of designation given by the co-ordinator under section 63(2); and (b) to take all reasonable steps to detain that care recipient in the facility during the period the designation is in force.” 
Clearly care managers have to take all the reasonable and possible steps they can. From time to time there is the difficulty of the facilities not being able to contain people. Clause 110 deals with the “Meaning of a care recipient who has escaped”. That is a practical matter because from time to time they do escape no matter how hard the vigilance. That leads to some very difficult reciprocal actions. 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 It is good to put these last parts together because they really do cover the administration of the Act and the details of what happens when someone has been placed under a compulsory care order. Interesting terms were developed for the bill such as that of the “specialist assessor” and the “co-ordinator”. The coordinator has to send copies of certificates to certain persons and needs to notify everybody about what happens to a care recipient when a compulsory care order changes or expires when somebody goes on holiday or when there is a variation to the order. There will need to be variations to compulsory care orders because people who may have become out of control in their behaviour—due to environmental issues or to other things happening in their lives—may settle down with appropriate care and changes will then be sought to compulsory care orders. The coordinator and the court will have regard to a specialist assessor’s certificate so a specialist assessor will come and reassess somebody. 
Of course the person’s intellectual disability is not going to change. The situation is not like that of mental health where somebody becomes unwell and with appropriate care treatment and medication can become well again. In the situation of intellectual disability we are talking about challenging and complex behaviours. The issue is whether we can change behaviour and therefore improve a situation. 
I remember another patient whom I dealt with when I went to see his mum and dad. There seem to be quite a few cases where mothers and fathers have become elderly but have children they have looked after all their lives—children who because of their disabilities remain children intellectually and continue to be in need of care. I will never forget going into that house. The mother had developed Alzheimer’s dementia and the quite elderly father was having a great deal of difficulty coping. They had a son—who I think was about 52 at the time I met them because his parents were in their 80s—who had never been known to any support services at all. I walked into that situation thinking: “Oh my goodness!”. That man could just dress himself and tie his shoelaces but that was about it. The parents had never had any help and he used to follow his father around two steps behind. That is how the father coped. Everywhere that dad went he went. 
That was fine in that situation but then one of his parents went into care and the other parent died. That situation was very similar to the other I mentioned but different in respect of which parent died first. When that man was put into a care facility in the community people were incredibly intimidated because he would be two steps behind them. Of course the women in the home became very upset because he followed them around so closely and some of the carers became very upset. His behaviour had been conditioned by his parents as it was their way of coping but it was very difficult to manage him in an ordinary care facility. There was a need for specialised education support and caring in this case to make those around that man understand that he was not being intimidating or trying to upset them but just showing a conditioned behaviour. That is an example of some of the things we see. 
As a geriatrician I was asked to assess people in Ngawhatu Psychiatric Hospital. Those people who had intellectual disabilities had reached their 60s and 70s and the hospital wanted to place them in rest home care. But some of the behaviours that had been conditioned by their many years of institutional care in psychiatric institutions proved totally inappropriate for a rest home situation. I remember one gentleman who whenever he got really upset about anything just picked up a chair and biffed it across the room. That was his way of getting attention in that environment but it was certainly not very appropriate in any other environment—especially a rest home environment. 
People with intellectual disabilities need specific care facilities in order for their behaviour to be managed. If that gentleman had picked up the chair and hit someone with it he would have ended up before the courts and come under the provisions of this bill. In those situations the status of special-care recipients must be clearly identified. 
The question was put that the amendments set out on Supplementary Order Paper 160 in the name of the Hon Ruth Dyson to Parts 6 to 11 be agreed to. 
Amendments agreed to and Parts 6 to 11 as amended agreed to. 
Bill reported with amendment. 
Third Reading 
Hon RUTH DYSON (Minister for Disability Issues) 
: 
 I move  
That the Intellectual Disability (Compulsory Care and Rehabilitation) Bill be now read a third time 
. I thank members and past members for their contributions as the bill has passed through its various stages since first being introduced to the House in October 1999. In particular I thank the members of the Health Committee under the chairpersonship of Judy Keall for their considered examination of all the issues in the bill and for preparing the bill to be reported back to the House. I also acknowledge the Minister of the time the Rt Hon Wyatt Creech for introducing the bill. 
Until 1992 Part 7 of the Criminal Justice Act gave the courts the ability to consider offenders who have an intellectual disability under the Mental Health Act. Since 1992 the courts have not been able to do that because of the legislative gap between the mental health legislation and the Criminal Justice Act. Having been properly excluded from the definition of “mental disorder” people with intellectual disabilities were also excluded from the coverage of Part 7 of the Criminal Justice Act. That meant they are currently liable to be treated inappropriately by the courts when they appear on criminal charges. These inappropriate placements include being sent to prison being detained as special patients in mental health facilities or receiving a non-custodial sentence. 
The Criminal Procedure (Mentally Impaired Persons) Bill is linked to this bill as it provides the legal mechanism by which people with an intellectual disability who have been charged with or convicted of offences are diverted to the compulsory care system. With the passage of both bills the legislative gap that has existed since 1992 will be closed and the courts will be able to make appropriate dispositions that provide for the care and rehabilitation of people with intellectual disabilities who offend. 
For the purposes of the bill the definition of “intellectual disability” is primarily based on one developed by the American Association for Mental Retardation. The association’s definition has recently been updated and the Supplementary Order Paper agreed to by the Committee of the whole House brings the bill’s definition into line with that latest version. I would like particularly to commend the work of the Health Committee which gave appropriate and very helpful consideration to improving that definition. 
The bill sets out the process for assessing people assumed to have an intellectual disability with special assessors provisions for second opinions and the input of members of the person’s family and community. There are three ways in which a person can become subject to the bill: through the criminal courts through a prison manager or through the director of the area mental health service. The Family Court can impose compulsory care under the bill only after completion of a needs assessment and a care and rehabilitation plan. The bill further provides for regular reviews and reports on the appropriateness of continued care and people may be released from compulsory care in a number of ways depending on how they first entered the system. The bill provides for two levels of care either supervised or secure based on the person’s assessed risk. It contains a number of mechanisms to ensure that the rights of intellectually disabled people are protected and further contains a number of statutory powers of compulsion to require the person to comply with his or her care order. These include the requirement that the person accept properly given care and comply with every lawful direction given by his or her compulsory care coordinator or case manager. 
There are provisions for specified people to use reasonable force for restraint detention or transportation. There are also powers for seclusion and medication. Those powers are balanced by specific safeguards against their abuse. They include court reviews of the terms and conditions of compulsory care 6-monthly clinical reviews independent monitoring and the opportunity for intervention by a High Court judge. In addition to those Part 5 guarantees people several specific rights including but not limited to information relating to their assessment and care order; respect for the care recipient’s cultural identity; independent health and disability advice as well as independent legal advice; and company to receive visitors and to receive and send mail. 
The main changes recommended by the Health Committee pertain to the definition of “intellectual disability” the removal of non-offenders from the original legislation and the inclusion of “Rehabilitation” in the title of the Act. Again I would like to commend the work of the select committee and I support those changes. 
Considerable progress has been made in setting up the infrastructure for the compulsory care regime. Each of the four regions within the Ministry of Health has established a regional intellectual disability care agency and has appointed staff who will now be able to carry out the care coordinator’s role as established under the legislation. Hospital level secure services are still at an early stage of development. The bill will provide the courts with appropriate options for the referral of offenders with an intellectual disability into a care and rehabilitation regime and in doing so will close a legislative gap. 
In addition to thanking the select committee I also want to place on the record my thanks to officials and to parliamentary counsel for their considerable assistance with the passage of the bill. It has been a particular pleasure to have the consideration and support of nearly the entire Parliament on this important issue and I commend its further speedy progress. 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 It is with pleasure that I rise to support the bill. The Hon Ruth Dyson made the point that one of the major changes to the bill was that the Health Committee took away the non-offender group. There were two groups: those that offended and could come under this bill and receive compulsory treatment and care and the non-offender group. 
I just want to quote from the commentary on the bill which includes a quotation from the submission of Kathleen Taylor who wrote: “For several years now we as parents of a child with special needs have been encouraged to believe that the care of our children should happen in the communities in which they live. We have been encouraged to embrace ‘mainstreaming’ and ‘inclusion’ in education and leisure. We were promised adequate levels of support. Institutions were a thing of the past. Now it appears that our children can be incarcerated if authorities feel that they ‘appear to pose a risk’...”. That is why that section was taken out. We cannot incarcerate someone for compulsory care simply because they appear to pose a risk. 
When we look at individual cases before us such as those of David Stephens and Mr Ryder we can see that the behaviour of those people has been at the level of offending. But those offences have been understood because the person concerned does not have the intellectual capacity to understand the consequences of his or her actions. What will have to happen under this bill is that when a person does assault another person or behaves in a very antisocial way that breaks the law that person will have to come before the courts be found unfit to plead and come under the jurisdiction of the Intellectual Disability (Compulsory Care and Rehabilitation) Bill. If that happens a person can either be placed in a secure facility or be subject to 24-hour community wrap-around services. 
I have to thank the Rt Hon Wyatt Creech who was the principal driver in developing this bill when the National Government was in power and my select committee colleagues especially Paul Hutchison and Roger Sowry who worked well on this legislation to get it to the state where we have all agreed to support it in this House. 
The Hon Ruth Dyson mentioned that hospital level care facilities have been very slow in development and I would urge this Government to get on with it because the people who will now come under this bill need somewhere to go. Some of these people are still in mental institutions or forensic care. They may be at the Kimberly Centre or Braemar Hospital. They need to be placed in special facilities because they cannot be placed in community care—their behaviour has been such that they pose too much of a risk to themselves or to society. It is important that hospital level care facilities are developed. I know that one is being developed at Porirua and another at the forensic unit in Auckland. But that development has been too slow and I urge that it be speeded up. 
The definition of “intellectual disability” was another area the select committee worked very diligently on. It was essential that we manage to have a definition with a broad enough scope to allow for the capture of people who have a low IQ around 70 and who may have some skills in some areas but very poor skills in others which leads to their offending. If they do have very poor social skills or have been trained in inappropriate behaviour then they need to be captured by this bill so that they can go into a care programme to improve their behaviour and to protect themselves and the public. The meaning of “intellectual disability” was expanded to allow this to happen and I think we came to a good conclusion in the end—one that we hope will work in practice. 
The whole purpose of the bill is to ensure that those people who since 1992 have not been covered by the Mental Health Act do have an Act of Parliament that will protect them and the community. It is with pleasure that I support the passage of this bill. 
PITA PARAONE (NZ First) 
: 
Tena koe. I rise on behalf of New Zealand First to support this bill. But in so doing I want to express some concerns I have particularly with regard to the costs that are likely to be diverted away from the area of service delivery and the likelihood that they will be used in managing the service. It is important that I mention that concern particularly if we take some note of how the health service in this country has developed over recent years. Although I acknowledge that we need good management I feel that much of the budget that has been allocated for the delivery of services has been consumed by management. 
I also want to mention that the apparent emphasis on one ethnic group under clause 23 does not augur well for other ethnic groups particularly those with similar social structures. In that regard I refer to our Pacific Island brothers and sisters and say that the bill as it stands is silent in that respect. The bill gives some solace to the wider community in that it goes some way towards protecting it from those people for whom this bill aims to provide improved services. In that respect the Government ought to be congratulated on promoting this bill. Clearer direction is provided to the courts and to the health professionals who will have to administer this new legislation. I note that there seemed to be no difficulty in the latter stages of the debate in debating most of the parts of the bill as one. The fact that a decision was made to deal with the earlier part of the bill in single parts thus avoiding further opportunity to call this Government to account in the time that would normally be set for oral questions was some cause of disappointment to me and my colleagues in New Zealand First. In conclusion I reiterate my support and that of my colleagues in New Zealand First for this bill. 
HEATHER ROY (ACT) 
: 
 ACT New Zealand will be supporting this bill. It is necessary to address a legislative gap that has existed for the intellectually disabled in need of compulsory care since the Mental Health (Compulsory Assessment and Treatment) Act of 1992 was instituted. This gap has seen the inappropriate placement of some of those with an intellectual disability in mental health services discharged into the community when this is clearly inappropriate for both the person involved and the community but worst of all of course is their placement in prisons. Prison is no place for those who need compulsory care but have not committed a crime or have valid considerations when these are taken into consideration. 
This bill allows for the requirement of the intellectually disabled to accept care programmes when compulsory care is necessary. We heard quite a lot in the Committee stage about Barry Ryder. He is a very good example of exactly why this bill is necessary. Barry Ryder was sent to prison and was let out as the law stipulated he should be—only to reoffend again. That happened despite the fact that Neil Pugmire breached his position with regard to privacy issues by warning that Barry Ryder would reoffend again and that that course of action was completely inappropriate. Had this legislation been in place when Barry Ryder was first sentenced the consequences the lives that have been ruined as a result of his further reoffending may well not have come to fruition. So ACT New Zealand will be supporting this bill but I would like to state for the record the concerns we have about it and they are several. 
Our first concern relates to the insertion of the word “rehabilitation” into the title. We are not opposed to rehabilitation and certainly the intellectually disabled should have the same right and access to treatment that all other citizens in the country enjoy. However “rehabilitation” needs to be defined for the purposes of the bill and despite my repeated requests to the Minister for a definition this matter has not been addressed. I would have liked to see the Health Committee at least attempt to define “rehabilitation”. I suspect in this case that it really meant behaviour modification and it would have been good to have had that pointed out. The problem with talking about rehabilitation both within the bill and inserting the word “rehabilitation” into the title is that it raises the expectations particularly of the families or the caregivers or guardians of the intellectually disabled and sometimes of the patients themselves. It also places an added burden on the workforce—the health professionals who are responsible for these patients—and I think it is an unrealistic one. Rehabilitation in its broader sense means we are able to cure people but of course there is no cure for intellectual disability and that is something that should be remembered. It is very important that terms like these are defined when we are talking about very specific things in legislation. 
The second concern is the change in the Supplementary Order Paper of the definition “intellectual disability”. I was not on the Health Committee but we are told there was extensive debate about the definition. The select committee spent a lot of time and effort and listened to many opinions about what the definition of “intellectual disability” should be but despite that—and despite coming up with what I thought was a very flexible but realistic definition and one that certainly the medical profession seemed happy with—the Minister in her Supplementary Order Paper went back to the original very narrow definition. I think that will raise problems for clinicians. The third concern relates to the political correctness in this bill and in others. We are very disturbed that political correctness seems to be pervading legislation these days. The term “care recipient” was brought up by several members. They used to be called “patients” and there was nothing wrong with that term. 
Dr Paul Hutchison 
: Quite simple. Everybody understood. 
HEATHER ROY 
: Yes everybody knows what it is. When somebody was receiving care or treatment that person was a patient. That term was later changed to “client” but those people were still receiving treatment so they were still patients. The politically correct title “client” implied that someone was paying for services. Now we have moved on to “care recipient” which does not roll off the tongue. People have to stop and think: “Care recipient—what does that mean?” The word “recipient” is not even part of some people’s vocabulary. Anyway this political correctness is unnecessary and just confuses issues. The law should be simple and clear. In fact terms like “care recipient” do nothing to help in this regard. 
The fourth concern is the cultural references which I also spoke about in the Committee stage. I did attempt to have clause 23 omitted by way of an amendment but unfortunately it was not supported except by my colleagues in the National Party. My question was: why was reference made only to Maori? Perhaps this Government believes it is only Maori who suffer from intellectual disability. That is not the case of course. People from all cultures deserve the same access and same respect when being treated. So quite why Maori have to be constantly singled out is beyond me. 
Darren Hughes 
: Just listen to yourself! 
HEATHER ROY 
: I am listening to myself and if the member wants to take a call he should do so. Good clinical practice incorporates a sympathetic approach to cultural matters and it is a sad day when we put into our legislation clauses about cultural awareness. Such measures are unnecessary—they should happen as a matter of course. If we single out particular ethnic groups a mini-industry builds up around the legislation on those cultural considerations. We have seen this happen in many areas particularly in the health field but not isolated to it. When these things happen an industry builds up. There is a legal requirement on the part of the district health boards whatever areas we are talking about to institute these things and those staff members must be available even when there is not much work for them to do. 
The people working in this field are delighted that this legislation will be passed and that is why I am supporting it despite my very valid concerns. Many of those workers share those concerns with me particularly the cultural ones. It is not acceptable in this day and age to have the intellectually disabled housed in places like prisons and in some of our mental health facilities around the country. They do deserve treatment that is specific to them and caters for their needs. For that reason ACT New Zealand supports this bill. 
JUDY TURNER (United Future) 
: 
 It is great that this issue is finally being addressed when we consider that work on this started in 1995 when the Ministry of Health commissioned a discussion document. It is concerning however that an issue directly affecting the lives and future of some of the most vulnerable members of our adult population can languish for such a long time and perhaps that reflects our ability to ignore the issues of those with intellectual disabilities. 
The bill is positive in that it reflects society’s desire to protect and rehabilitate vulnerable members of society rather than punish them. It represents a further step in recognising that although society does not condone offending our response to offenders with intellectual disabilities needs to acknowledge the reality that in many cases prison is not an option. The bill is important because the public eye has tended to focus on the specific issues of people with mental illness and the needs and unique issues of those with intellectual disabilities have often gone unheralded. I congratulate the Minister Ruth Dyson on actioning this legislation. 
United Future is pleased that the definition of intellectual disability has been altered to align with international definitions. We are pleased that non-offenders have been removed from the scope of this bill as such a move would have created alarming possibilities for discrimination on the basis of disability. However United Future is concerned that adequate care is resourced for those with challenging behavioural issues so that the possibility of offending is minimised. We were also concerned that the Government should ring-fence funding for compulsory care especially in the initial stages of the development of sites for staffing and protocols. This has not been done. However the Government has assured us that the additional $50 million funding over 3 years is tagged and able to be differentiated from other service expenditure. It will also have the protection of having to be signed off. It is essential that compulsory care is adequately resourced. United Future’s central concern is that although this legislation provides an avenue for those who have an intellectual disability and are in need of compulsory care the needs of a much larger and vulnerable segment of the population still remain substantially unaddressed. It is expected that approximately 150 to 200 people will be covered by this proposed legislation. However there are an estimated 11500 to 15000 adults who need support due to disability. 
The National Health Committee’s recent report  
To Have an ‘Ordinary’ Life 
 released last month raised a number of very disturbing concerns relating to the importance we place on the needs of those with intellectual disabilities. The committee found that adults with intellectual disabilities are treated as second-rate citizens. Their lives are simply not consistent with the vision of the New Zealand disability strategy. Unlike ACT in this regard we support the new terminology of “care recipient” as opposed to “patient”. These people are tired of being thought of as sick rather than impaired. The current support services are overly custodial and restrictive and they can stifle the ability of those with intellectual disabilities to make their own choices. The report in its disturbing category of findings highlighted that there is systemic neglect of the developmental potential of this group of people and their families and whanau. There are also high levels of poverty a lack of basic health-care low educational opportunities as well as a lack of communication support a lack of culturally appropriate services and a lack of purposeful futures. With the move from deinstitutionalisation in favour of community care this group has been forgotten and the committee comments that although the bricks and mortar have been removed many adults remain disenfranchised. 
We commend the development initiatives for non-offenders but believe that we need to see improved outcomes in the areas of respite care vocational services and independent supported living services. It is our responsibility to ensure all measures are in place not only to support the human potential of this group of people but also to ensure that the number of people with intellectual disabilities who become subject to compulsory care is reduced in the future. United Future is pleased to support this bill. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 With a great deal of pleasure I do indeed say that I support the third reading of this bill particularly so because it has taken so long before it has finally got through the House. After all the genesis of this bill was in the 1980s and 1990s. At that time it took people like Law Commissioner Tim Brewer to urge that it was very important for this to come into being after some preventable tragedies had occurred in New Zealand. During that time more preventable tragedies have occurred. 
It seems quite extraordinary that even though the bill was introduced in October 1999 the Labour Government has chosen to look at other priorities such as introducing the Health and Disability Bill which has only perpetrated on New Zealand the most enormous conglomeration of unmitigated bureaucracy that our health system has ever known and instead it could have concentrated on bills such as this. 
However I must say that I enjoyed that early select committee and the cross-party collaboration and enthusiasm to see this bill progress. I must acknowledge my colleague Dr Lynda Scott for her very valuable work and of course Wyatt Creech the former Minister of Health. That Health Committee was indeed unique with the presence of the former chairperson Judy Keall. While I cannot say that I necessarily miss her unique articulations and iterations I can say that the House and the select committee are quite different without them. She was a woman of huge enthusiasm and I am always grateful to her for bringing my 97-year-old mother a bunch of flowers on her birthday when she was 91 or 92. However she did indeed have a lot of care that this bill should be well considered and that it should be brought through the House with due expediency and that has not happened. 
What makes me even more frustrated is the fact that here we see this Supplementary Order Paper that has redefined intellectual disability. I acknowledge that the Minister has explained the reason it has been redefined on a technical basis but there is a mistake. Clearly on one page we talk about a confidence limit of 95 percent but on the explanatory note we talk about a confidence level of not less than 75 percent. If the Hon Marian Hobbs had that sort of confidence level with her sweetcorn she would be getting into a hang of a lot more trouble than she is in already. I hope that this was merely a typo and that it will be corrected because it was fundamentally very very important. 
I am also concerned by the political correctness that has infiltrated itself into this bill. 
Hon Ruth Dyson 
: The member is better than this. 
Dr PAUL HUTCHISON 
: This is important because these terms unfortunately stick and they are unnecessary. The point is that the person in the street does not understand them. It is the same with this extraordinary need of the Labour Government to legislate for cultural correctness. We have this whole clause 23 “Cultural assessment” where not only is there the requirement to attempt to legislate culture ethnicity language or any religious or ethical beliefs but also the attention to Maori. 
We never really had the explanation as to why it is so necessary in this sort of bill. We are living in a truly multicultural society and while of course it is absolutely appropriate that families whanau and iwi are totally acknowledged and observed why does it have to be put specifically in legislation? I think that in 50 years’ time it will not be relevant. We have sort of gone through this little 20-year time warp where there has been this absolute subconscious knee-jerk reaction to have attention to something that will not endure on universal principles over a long period of time. 
I want to make just another couple of comments. One is to reiterate that one of the submitters who left me with a strong sense of concern about getting this bill correct—Kathleen Taylor—who had been through the situation of having an intellectually disabled child who had not offended was in absolute constant worry of that child offending but she could not find anyone to take responsibility when the going got tough. The plea that she made was instead of such a punitive bill she would like to see measures put in place to adequately support parents and caregivers to care for the disabled dependants in their own community. This would be a far less expensive option. With adequate levels of supervision dangerous incidents would be extremely rare. I think again of the forethought of Wyatt Creech and the National Government back in 1999 when they provided $50 million to ensure that some of those basic facilities would indeed be put in place. 
I note that the commentary states: “The following service development has occurred: Service specifications have been developed … The Clinical Training Agency has put out a Request for Proposal for the provision of a training course …”. Now that has not gone as well as it could but it was very important that it actually happened. “Negotiations are commencing with providers to build up capacity in preparation for services for offenders and Work is also proceeding on the planning for other community based services.” 
Now the sadness is that not all those things have come to reality. Phil Goff back in 1999 again said that the basis of this bill was providing realistic mental health services and facilities for those who were intellectually disabled and that has not happened. However I end by saying that I certainly do support this bill into the House. It is timely. It is overdue but it is certainly necessary. 
Bill read a third time. 
New Zealand Horticulture Export Authority Amendment Bill (No 2) 
Second Reading 
Hon DAMIEN O'CONNOR (Associate Minister of Agriculture) 
: 
 I move  
That the New Zealand Horticulture Export Authority Amendment Bill (No 2) be now read a second time 
. The bill was introduced into the House in March 2003 and had its first reading on 2 April after which it was referred to the Primary Production Committee for consideration. I thank the committee for its work on the bill and for reporting it back so quickly. The bill has three main objectives. The first objective is to provide the kiwifruit industry with the option of bringing the export of kiwifruit for consumption in Australia under the framework of the New Zealand Horticulture Export Authority Act. The second objective is to prevent quantitative restrictions from being imposed by export marketing strategies approved under the Act. The third objective is to make three administrative improvements to the Act itself. 
The select committee received 362 written submissions on the bill showing a clear level of interest and the importance of it. I am pleased to inform the House that the vast majority of those submissions supported the bill allowing kiwifruit exports for consumption in Australia to be prescribed under the Act in time to apply that framework from next April which is the start of the 2004 export season. Of the 352 submissions that supported this 341 were submitted by individual kiwifruit growers and focused only on this objective. The other 11 submissions supporting this proposal were from kiwifruit exporters and kiwifruit industry organisations. 
I am also pleased with the strong support demonstrated to the committee by the kiwifruit industry. No doubt this support means that I can soon expect an application from the kiwifruit industry for an Order in Council to bring kiwifruit exports for consumption under the Act. It also indicates the kiwifruit industry’s desire for this bill to be passed sooner rather than later. 
The second objective of the bill is to prevent quantitative export restrictions being imposed under the Act. This objective arises from the need to ensure the Act is consistent with New Zealand’s international obligations. This was the most controversial objective of the bill. Sixteen submissions to the committee commented on this objective of the bill. Of these the committee received seven submissions opposing removal of the provisions allowing quantitative restrictions while a further eight submissions proposed consequential amendments and one submission expressed support for removing these provisions. 
The consequential amendments proposed to the committee were insertion of the words “market development” and “flow planning” into the section of the Act that states what an export marketing strategy can be about. In respect of the proposed consequential amendments I support the committee’s recommendation that the words “market development” be inserted into the bill. Section 6 of the Act states that the primary function of the Horticulture Export Authority is to promote the effective export marketing of horticultural products as prescribed under the Act. The concept of market development is central to the Act and an export marketing strategy under the Act should clearly be able to include such proposals. 
I also support the committee’s recommendation to amend the bill to clearly state that quantitative restrictions are not permitted under the Act and to not insert the words “flow planning”. These recommendations remove any uncertainty about whether quantitative restrictions may be imposed under the Act. 
The third objective of the bill accounts for the majority of clauses in the bill. These clauses provide three administrative improvements to the bill. The first improvement is to the Horticulture Export Authority’s statutory decision-making processes. Currently the Act provides for reconsideration of decisions only in relation to applications for export licences. The bill extends this reconsideration right to cover Horticulture Export Authority decisions on export licence conditions and applications for exemptions under the Act. The second administrative improvement relates to the powers of the arbitrator who under the Act considers appeals of the Horticulture Export Authority’s statutory decisions. This amendment provides the arbitrator with discretion to award all costs of an appeal. This overcomes the narrow interpretation that has set a precedent on what costs can currently be awarded under the Act. 
The last administrative amendment is to allow the Horticulture Export Authority to cancel redundant export licences. This will allow the authority to ensure that its public register of exporters remains up to date and it will save the authority’s time and money by ceasing its involvement with those businesses that no longer export particular products under the Act. 
The committee received support for the bill making these three administrative improvements from key submitters being the Horticulture Export Authority itself the Horticulture Exporters Council and the joint submission from the Fruitgrowers Federation and the Vegetable and Potato Growers Federation. 
I would like to thank the select committee for its consideration of the bill and for reporting the bill back. I would like to say that the committee operates very effectively in a non-partisan way when we have important issues around the export of primary production from this country. I commend this bill to the House. 
Hon DAVID CARTER (National) 
: 
 The National Party will support the passing of this bill with pleasure. I start by thanking the Minister for his speech and also commenting on the interesting situation that the Primary Production Committee found itself in when initially the bill was presented to the select committee under the name of the Hon Damien O’Connor and immediately to my right on the select committee to hear the evidence and consider how we should handle the bill was the very same Hon Damien O’Connor. 
R Doug Woolerton 
: A constitutional outrage! 
Hon DAVID CARTER 
: I would not have gone so far as to say that. 
Hon Damien O'Connor 
: Good advice right to the end. 
Hon DAVID CARTER 
: The Minister did give good advice but I think the select committee process is there to give the public a chance to have confidence in the fact that the executive and its work is being examined by the select committee process. It is a very odd situation that the Government managed to get itself into whereby we had the Minister sponsoring the bill sitting on the select committee as we embarked on the process to examine the bill. The good news is that common sense prevailed. I think also the workload of the Minister probably prevailed and we welcomed to the select committee Harry Duynhoven who towards the end of our consideration made a very good contribution. 
 I would like to comment on the three administrative changes which were supported—I think I am correct in saying—by all submissioners who made mention of their inclusion in the bill. I think I am correct in saying that. It seems wise to me that we have a system whereby the register of growers can be kept absolutely up to date and the change whereby export licences are recognised and removed seems common sense to me. 
The issue of the ability for the arbitrator to award costs equally is something that I think is correct. It puts some pressure on any particular party wanting to seek arbitration on less than genuine and sound reasons. 
Secondly I mention the timing of the legislation. The industry appeared before us asking that the legislation be passed as quickly as possible. It presented information to the select committee that problems existed with the way Australia had been considered at the time a domestic market. More important there was some evidence before the select committee of exports occurring from New Zealand to Australia and then the re-exporting of New Zealand kiwifruit from Australia to other markets certainly to the detriment of the international marketing efforts of Zespri. So there was an issue of timing. I note that the select committee managed to report this back on 19 August and there it has languished on the Order Paper for in excess of 2 months and now we are in a position of moving it through with urgency. I imagine that the industry on the whole will be very pleased that the Government has finally seen the necessity to move this legislation through. 
In talking about the Australian situation whereby this legislation will now amend the current Act and allow kiwifruit exports to Australia to be brought under the New Zealand Horticulture Export Authority framework I support that. I support it on the basis of the strong evidence given to us that the current mechanisms whereby Australia is treated as a domestic market had resulted in an uncoordinated approach to the market to the detriment of growers in New Zealand. I take this opportunity of congratulating Zespri on the excellent job it has done in securing other international markets to the benefit of kiwifruit growers in New Zealand. 
Ian Ewen-Street 
: And staying duty-free. 
Hon DAVID CARTER 
: Mr Ewen-Street never misses an opportunity. I will not say any more. I congratulate Zespri. I think the remarkable turn-round in the fortunes of New Zealand kiwifruit growers is in no mean way due to their superb marketing efforts and that is to be for the benefit of the guys themselves quite obviously but to the benefit of the New Zealand economy on the whole. 
The final point I make refers to the third leg of the legislation and the changes it then makes to our export requirements so that New Zealand cannot use quantitative restrictions as a means of trying to manipulate the market. It is a technical area I accept but with New Zealand being a country so dependent on exports it is vital that we portray to the world an ability to export on a fair basis without any so-called possible trade barriers and restrictive quantities. 
The select committee processed the bill as Damien O’Connor referred to in a very non-partisan way. I think we have made substantial changes which I will talk to through the Committee stage that have improved the legislation. I applaud the Government for finally moving it along on the Order Paper and the National Party supports such legislation and its changes with pleasure. 
R DOUG WOOLERTON (NZ First) 
: 
 First I would like to thank the chairperson of the Primary Production Committee and the officials from whom we got excellent advice as usual. I too would like to congratulate the kiwifruit industry on a remarkable turn-round in its fortunes over the last year or so. The people in the industry were innovative and took many risks in the early days but they have organised their industry and have gone out there to capture markets on the other side of the world. New Zealand First has always supported organised markets or organised marketing even in the times when it was not at all fashionable to do so. It is interesting to recall that in the haste to reorganise all the marketing boards a few years ago by another administration this one was going to be the prime contender for reorganisation. It adjusted its constitution called itself Zespri and did a whole lot of other things. But essentially it has remained a single seller and that has been its strength. New Zealand First and I congratulate the industry on its foresight. 
This bill does something else that we think is very advantageous: it stops the re-exporting of fruit that has been sent to Australia on to other markets—or at least it makes sure that the fruit sent to Australia is of a standard that is set by the Horticulture Export Authority and prior to that by Zespri itself. Our markets are damaged by inferior-quality fruit. Marketing is hugely expensive. These people have done a huge marketing job in Germany. They have purchased I do not know how many Volkswagen cars painted them all up and promoted the products—not to mention all the lovely ladies they employ in order to get people to sample the products. A huge cost was expended on marketing. It is simply not fair it is not sense and it is not good business to see those markets eroded by inferior-quality fruit. That is what has been happening to a degree. Smaller fruit fruit of insufficient quality has been going into Australia and then entrepreneurial exporters have been sending it on from there to compete with Zespri fruit in the markets where the quality has been built up by the expenditure of a lot of money over the years. This bill stops that. 
There were several submitters who would have liked to organise the market to too great a degree—in the select committee’s view and I think in the Minister’s view. They wanted to organise or regulate the quantity of fruit that was going into the market which would have had the effect of ratcheting up the price. Naturally the select committee rejected that request. This bill in fact takes away the quantitative restrictions that were in the overarching bill. We think that is fair and proper. We have no problem with regard to making sure that the market is looked after and saved from inferior fruit but we do not believe that it is in New Zealand’s interest or the growers’ interest to starve the market of fruit thus ratcheting up the price. 
There are those on the right of our party who believe that all fruit has a market. Mr Gerrard Eckhoff made that point very strongly at the select committee. He believed that even inferior fruit would have a market and that it should all be sent out there. He said we should have a “buyer beware” situation with people paying what they think they should pay and the market would sort itself out. We do not subscribe to that theory and neither did the select committee I am pleased to say. So we ended up with the amendment that we have here. 
The kiwifruit industry has recovered from some tough times. It has put tough restrictions on its growers and has asked for large contributions from them. Most of the growers—not all of them—have gone along with that and are reaping the rewards. Not all growers have agreed with that and those who have not done so and have not put the effort into ensuring the quality of their fruit would now seek to reap the rewards of those who have invested large amounts of money. We do not think that is right. I am concentrating on a small part of the bill but I think it is a very very important part. 
I commend this bill. New Zealand First is happy to support it in spite of some interjections from my parliamentary colleagues across the House. 
GERRARD ECKHOFF (ACT) 
: 
 I find myself in a rather interesting situation. As the rural spokesperson for ACT I am quite clearly very keen to ensure support from rural New Zealanders whether they be kiwifruit growers or woolgrowers or whatever they may be. But the issue is not about popularity. The party I represent has always stood in this House and espoused principle. We also espouse philosophy. That is something that we will not break away from. The principle behind this bill is this question which I ask the House: do people in the year 2003 in New Zealand have the right to sell the products of their labours? It is quite a simple question and I think most would say yes of course they do and of course they should. Then we get into the intermingling of the theory and the practice and we start to say no they should not have that right because it could upset the market. 
Well I think it is important to stick to a fundamental philosophy and to a principle. The principle I espouse this afternoon is that everybody should have the right to sell the products of his or her labours. Indeed I well recall submissions from members of the Maori community who demanded—they did not ask; they demanded—the right to sell the produce of their labour. They had a very worthwhile marketing plan based on indigenous peoples as I understand it throughout the world and it seemed to me to be a highly intelligent and very sensible way of achieving a niche market. Yet the Primary Production Committee looked at that and said no. I support anybody whether Maori or non-Maori who wants to sell a product overseas. 
Kiwifruit is sold across the water to South Islanders. Where is the export authority on that one? Indeed I asked that question of the members of Zespri and so on and they appeared to be slightly embarrassed about it because the South Island is getting inferior-quality fruit. It still tastes the same as higher-quality fruit and it still has a great colour and everything else but it is misshapen. Frankly when I go to a supermarket in Roxburgh or anywhere else I do not mind about that. I look at the price and say to myself that I can buy some first-rate Tauranga kiwifruit—or wherever they may be from—for 50c and that the nice big $1 ones have been exported to the American market. But I have some sympathy with the ordinary person in Australia or wherever else who says he or she cannot afford to pay $1.50 or $1 for a kiwifruit and would actually like to buy a misshapen one for a lesser price. It makes the point that Mr Woolerton made—that is that there is a market for everything. Can members remember a situation in New Zealand whereby we said we would be allowed to export only high-grade quality wool? We export dag wool for goodness’ sake! Why? It is of inferior quality—but we have a market for it. Surely the principle behind this issue is that if people have something that other people want they can sell it. 
I was quite disturbed to hear that the House passed almost without a murmur the Wine Bill. We have a wine export authority now so we are getting a creeping socialism—I can only describe it as a creeping socialism—coming into the export of our product. First it was wine and now it is kiwifruit. What is next? Are we going to have it again with apples? Are we going to go down the path of that outrageous example of a few years ago where apples were controlled? If we look at what happened to that industry we see that that was an absolute disaster. So I ask the House to recognise that constraints of trade long term will have a bad impact on the viability of this country. Whether it is in the case of two small industries or smallish industries like kiwifruit and wine does not really matter; I come back to the fundamental principle that it is a constraint of trade. I think that the Maori members of our community who are involved in the kiwifruit industry will be most upset with some members of this House espousing the fact that Maori cannot and should not export the sort of fruit they want to after Maori have gone out there and found markets for it. I think it is very important to emphasise that particular point. 
I will go back in history a little bit just as a slight lesson for my colleagues Mr Woolerton and so on. There was a constraint of trade in Ireland. Way back in the 1700s the Irish—Mr O’Connor is looking very interested in this given his ethnicity—were not allowed to export glass and wool I think it was by decree. An export authority said they could not export those products. Then along came the potato famine and a few other things and Ireland was in all sorts of economic trouble because an authority had said certain products could not be exported. Again that principle is just so wrong. We must have a situation whereby the people of the country get out there scour the world find the markets and sell their products. We actually import a huge amount of inferior product from throughout the world and sell it in retail stores. The people of New Zealand have the nous to say they do not want an inferior product and want a superior product both of which may come from the same country. We have the ability to choose for ourselves. 
What is it that makes other parties in this House seem to think that people throughout the world do not have the capacity for choice? Of course they do. They choose on the basis of quality price and a host of things that appeal to them and that is surely their right. There is the possibility for example that somebody in Australia may come up with a wonderful way of handling second-grade fruit and turning it into a product that nobody in this country has even thought of. Yet we are saying no that person cannot do that. Again I say the right to sell the product of our labour is a fundamental principle that this country should be based on. If we are to have a deed of such principles applying throughout this country one of them must be that we have the right to sell our product whatever that product may be—whether it be wine wool or in this case kiwifruit—to a market wherever that market may be. 
I make this point also. How many million tourists do we get coming into New Zealand? They have the opportunity to buy so-called inferior-grade kiwifruit. Why? Why do we not take that inferior-grade fruit off the market in New Zealand as well? That is why this bill is so stupid. It is like telling tourists who come to New Zealand they can drink only quality New Zealand wine because they could have a bad experience if they drink a bit of stuff from Damien O’Connor’s corner of the world the West Coast—not exactly a renowned wine-growing area. The point is that this global village of ours is made up of interactions. People have the ability to make decisions and choices for themselves. They come to New Zealand have a great taste experience with a bit of Zespri Gold or the traditional kiwifruit and they are not overly concerned about the shape of the fruit. If they can get it cheaply they think that is great. When they go back home cannot get the cheap stuff there and have to pay three times the price for kiwifruit they think that when they come to New Zealand they can get cheap kiwifruit. Why do we sell cheap kiwifruit here? If we are to constrain the quality overseas why not also constrain it in New Zealand because the same people will be eating it. The same people from Australia England and America will come to New Zealand and have that so-called bad experience of eating inferior-shaped fruit. That is what we are talking about. We are not talking about quality in terms of its flavour because nobody will buy the stuff that is mush. It is only the shape and size of a kiwifruit that really seems to be the problem for the Horticulture Export Authority. 
I make the final point that there is only one authority. What will happen if its decision-making process is wrong? The whole of the industry will go down just as it did with ENZA’s apple exporting. That authority got things wrong and the whole of the apple industry suffered. That is absolutely the wrong approach to take. We should spread the risk and allow the industry to develop. We will get responsible attitudes right throughout the industry if it is allowed to progress. 
IAN EWEN-STREET (Green) 
: 
 I rise to take a very brief call in the debate on the second reading of this bill. I start by thanking the officials as some of my colleagues have also done. I appreciate the quality of the advice they gave us. I would also like to pay testament again to the collegiality amongst the members of the Primary Production Committee. I believe we work very well in a non-partisan way. We may take our own political views outside the committee room but when confronted with a problem inside the room we deal with it in the best and most practical way possible. 
I would like to address one aspect of this bill very briefly which is that of export to Australia. Despite the comments of my learned colleague Mr Eckhoff who obviously failed Marketing 101 the influx of low-quality kiwifruit into Australia has resulted in a loss of about $5 million per year to our kiwifruit industry. It was a loss but as I understand it that is exactly what he is advocating. One of the problems the industry has had is that kiwifruit exported from New Zealand to Australia have then been re-exported for a profit from Australia to Asian countries in particular. It is obviously to the disadvantage of New Zealand growers that growers are getting a low price in Australia while some entrepreneur in Australia is on-selling for a profit. 
It is clear to me that the idea of having an organised single-desk seller is still effective. Like my colleague Mr Woolerton I believe that the single-desk concept is not a bad one despite it being very unfashionable. Kiwifruit sellers have decided that that is the best way for them to go. They have also decided that their market both in Australia and in other parts of the world is very much dependent on quality. That is a very similar message to the one we debated on the Wine Bill last night. The wine industry is also heavily dependent on quality. A lot of our markets are dependent on quality. 
One thing we have to bear in mind is what the wine industry and the kiwifruit industry have in common other than their obsession with quality. They are both market-driven and they both state that they need to be GE-free. They cannot embrace genetic modification because markets will collapse. It is not rocket science that we are talking about. Even Gerry Eckhoff could probably get Marketing 101 if he got his head around that. If we have a market in which people do not want to buy our product we will have very low prices. What we want is to have a high-quality product that people want. At the end of the day our markets are unequivocal. They say that a premium will be paid for our product if it is of high quality and guaranteed to be free of any kind of genetic contamination. [ 
Interruption 
] I say to Mr O’Connor that that is the way it is. 
The Green Party is very pleased to support this bill. Obviously the Horticulture Export Authority is a very learned body. It is one that— 
Richard Worth 
: Learned? 
IAN EWEN-STREET 
: It is very learned. It is concentrating on quality. That is what New Zealand export is all about. 
RICHARD WORTH (National—Epsom) 
: 
 I raise a point of order Madam Speaker. It has been drawn to my attention—and it may be that the Hon George Hawkins has not noticed it—that he was keen to take a call on this issue and deliver an important policy contribution to the debate. I would not like the fact to be overlooked by you that he has not risen to seek the call. 
Madam DEPUTY SPEAKER 
: The member knows that that is not a point of order. 
LARRY BALDOCK (United Future) 
: 
 I rise to support this bill in its second reading on behalf of United Future. It is important to recognise that the bill amends the New Zealand Horticulture Export Authority Act in two important ways. A string of changes deal with the operation of the authority in general. As it currently reads the Act provides for the imposition of quantitative restrictions on the export of prescribed products. Despite the non-utility of those particular provisions their continued existence in legislation lies contrary to this country’s international trade obligations. Given that I support the Primary Production Committee’s proposed reversal of section 26(2)(a) of the Act so that it states without ambiguity that an export marketing strategy cannot enforce quantitative restrictions on exports. If anyone else can tell me what that means I would appreciate it. 
Three other general amendments to the Act suggested by the authority itself focus on the improvement of its administrative effectiveness. There is currently a hearing process for Horticulture Export Authority decisions on export licence applications. That process also considers circumstances where the authority believes on reasonable grounds that a licensed exporter has conducted export operations that prejudice the current product group’s export marketing strategy. However at present there is no provision for hearings to be held on other statutory decisions of the Horticulture Export Authority. This bill will rectify that. 
The bill will also allow costs to be awarded to all parties in the case of any dispute under the Act. That effectively will override the precedent set by the most recent arbitrator who did not award costs to all parties. 
Finally the current Act fails to allow the Horticulture Export Authority to revoke redundant export licences and therefore the register of exporters includes some redundant information. This bill will correct that. 
Moving beyond adjustments to the general operation of the authority I note that the bill also contains specific amendments relating to the kiwifruit industry. It allows the kiwifruit industry the option of coordinating the export of kiwifruit to Australia through the Horticulture Export Authority. Kiwifruit exports to the rest of the world except to Australia are managed by the Zespri Group in a solitary export regime. 
I take this opportunity to speak highly of Zespri and its marketing which has developed such excellent returns for the kiwifruit industry—particularly in the Bay of Plenty—that the economy has been very positively affected over recent years. We are very proud in Tauranga that Zespri has chosen to move its head offices there as many other companies are also doing because of the excellent lifestyle that is offered in that wonderful part of New Zealand. 
There have been many comments made about the pros and cons of the single desk and I believe that in Zespri we have an example of how single-desk marketing works very effectively for its growers. It is to do with the quality of the people who are involved in the organisation—those who are committed to working for their members rather than becoming complacent and enjoying the lifestyle that the single desk can sometimes protect. I do not believe that there is any risk of that happening with regard to Zespri and I commend the company for its excellent work. 
This bill deals with concerns about the re-exporting of second-quality kiwifruit out of Australia. Much comment has been made about that already and I also mentioned it in my speech in the debate on the first reading. I do not see that there is any need this afternoon to take any further time on that subject. United Future is very happy to support the second reading of this bill and looks forward to its speedy process through the House this afternoon. 
SHANE ARDERN (National—Taranaki - King Country) 
: 
 It is great to follow so many good speakers from the Primary Production Committee. When I was a member of that committee I used to say it was the best select committee in Parliament and now that I am not a member of that select committee I still say it is the best select committee in Parliament. I would love to be back as part of the Primary Production Committee. 
The select committee heard 352 submissions with most of them in favour so I have been led to believe. We are talking about a $1 billion export industry from New Zealand exporting what used to be called when I was a child going to school Chinese gooseberries. I do not think many people understand that—$1 billion worth of Chinese gooseberries are exported by the Zespri Group from Tauranga in the Bay of Plenty and across New Zealand. Those growers came to the select committee—a very good select committee it is—and suggested that they had one or two problems with people in Australia exporting second-grade fruit under their brand. They have some problems with that. I think they said they were a bit anxious about some of this back-door exporting. 
Recently I was contacted by a person from the BBC who wanted to talk to me about the back-door tax from down under. I am not sure whether he was referring to back-door exporting or another issue that has nothing to do with this bill so I had better come back to the— 
Hon David Carter 
: “Back-up Pete”. 
SHANE ARDERN 
: He might have been talking about “Back-up Pete”. He was talking about something from the back door. I think he said the back-door tax from down under which I thought was a very catchy line that the BBC ran. 
This bill is about people who are taking an inferior product putting it under a brand that has cost a New Zealand industry a lot of money and effort to build up and damaging that brand. We cannot allow that to happen. The Horticulture Export Authority has come up with a plan which is outlined in this bill. It says that all products must meet the standards set down under the terms and regulations laid out in this legislation. The National Party supports that concept. The kiwifruit industry considers that exporting kiwifruit to Australia with the Horticulture Export Authority framework will allow marketing to be coordinated and quality standards to be applied which will stop all that sort of activity from going on. 
I know there are some people who have concerns about the whole idea of any regulation at all of exports and I know there are some who have submitted that they will be restrained or their exports will be curtailed or otherwise restricted by this bill. I do not think that is so. I think if they applied to the Horticulture Export Authority and Zespri and worked through this issue with that group of people who appear to me at least to be interested in the best interests of this industry and of the whole of New Zealand they would find a way through. I understand that they have concerns and I note that but I think that if they work through the channels that have been outlined here they will find a solution to their problems. 
There are a number of other issues that are touched on such as market development. Section 26(1) of the Act refers to the recognised product group for the product specified under the Order in Council. Clearly that is a key point with regard to this legislation because if what is being exported cannot be specified in terms of size colour breed or other type of measurement then it is very difficult to tell what it is that those who are complaining are complaining about. We know that through the very solid science and work that are going on. Zespri Gold which is a relatively new development is starting to develop new markets that did not exist prior to the whole formation of the kiwifruit marketing structure. It is showing huge promise in countries like Japan and in other areas of the world to which we would not traditionally be able to export this product. We should support whatever it takes whatever regulation is required to protect enhance and help that. 
I think the select committee has gone through that thoroughly. I know that the chair of the select committee my very good colleague the agriculture spokesperson for the National Party assures me that the whole process was taken very seriously. 
Clayton Cosgrove 
: Who’s that? 
SHANE ARDERN 
: I know that the member interjecting over there will have paid close attention to it being a huge customer of Zespri’s in terms of consumption of kiwifruit—if not the fruit itself certainly the products made from it particularly if they have some kind of alcohol content. I know that those things would have been thoroughly investigated by this committee so we can only assume that most of the problems that were raised have been addressed. 
I notice in the list of things that the bill also addresses mention of an appeal authority or a hearings authority or a structure whereby people can come put their case and have it heard fairly by people who have no axe to grind as it were or any particular political bent line or reason to want to persecute one group or another. That is an excellent structure as well because clearly for whatever reason there will be some detail with regard to exporting somewhere that the committee has not thought of. If the export authority can address those issues under its licensing structure then clearly we will have fewer problems with it. If it were too constrained people would constantly feel aggrieved and want further appeals for change and that would obviously be a costly process and a waste of time. I am pleased to see that that part has been addressed. The bill provides for hearings to take place to consider a refusal of a grant or a refusal to revoke an exemption or to impose or vary any conditions in relation to the exemption under section 40 of the principal Act. That sounds like a very sensible way forward. 
Hon David Carter 
: You can rely on us. 
SHANE ARDERN 
: The member says we can rely on the committee. I am sure that is absolutely so. I know that that issue was raised under the former chairman a couple of times. He was working on it. It took a change of Parliament and a new chair and we are here today debating it. I see that members opposite are pleased with that. 
Hon Mark Gosche 
: Sit down Shane. You’ve been going half an hour. 
SHANE ARDERN 
: It is good to see that Government members over there are still awake and are pleased with that—although it is hard to tell. However they have suddenly risen to the occasion and I am sure that at least half a dozen excellent speeches from them will follow to talk about this issue. 
The select committee also considered that section 26(2)(a) of the principal Act should not be replaced. Obviously that would have taken a fair bit of time and a lot of consideration. Clearly the select committee has looked at all the reasons why that would be so. I am pleased that it has been left there and I look forward to one of the Government members taking a call to tell us why it was not replaced or repealed. I look forward to the contribution from those members opposite on that. 
I also note that clause 5 has been altered to state clearly that there should be no quantitative restrictions on exports. That is a very good idea. Of course we would not want to restrict the tonnage that we can export. If we can export thousands of tonnes of kiwifruit whether they be Zespri Gold or just ordinary Zespri we would not want to— 
Hon David Carter 
: Chinese gooseberries. 
SHANE ARDERN 
: And Chinese gooseberries if a market could be found for them still. We would not want to restrict that either. This is excellent work from the best select committee in Parliament. The bill is very good and I look forward to its passage through Parliament. 
Bill read a second time. 
Instruction to CommitteeCWH 
JOHN CARTER (Senior Whip—National) 
: 
 I am sure the Minister is about to move a motion but it might be useful if Parliament is of a mind to seek leave to instruct the Committee to consider the bill as a whole. I seek leave for that so to happen. 
Madam DEPUTY SPEAKER 
: Leave is sought to take the bill as one question. 
Is there any objection? No there is not. 
In Committee 
Clauses 1 to 11 
Hon DAVID CARTER (National) 
: 
 I have two points to raise and the first is with regard to the commencement date. I am certainly not proposing that we alter the commencement date. The sooner this legislation is passed the better. I see that Mr Cosgrove is already applauding silently although I do not know quite why. I have been concerned that this legislation has sat around for so long on the Order Paper. The Primary Production Committee is always asked to rush these things back. There is a bit of a pattern around this kind of thing as the Minister in the chair the Hon Damien O’Connor will well appreciate because he spent so much time working on the committee prior to his elevation to higher things. An explanation as to why the industry has had to wait for so long would be much appreciated. 
My second point is the issue of the quantitative restrictions and the removal of the ability to apply quantitative restrictions. I refer to a number of submissioners in particular the impassioned pleas made to us by the New Zealand Avocado Industry Council Ltd and the New Zealand Avocado Growers Association. Those people were quite genuinely concerned that the removal of quantitative restrictions would allow one particular grower who has established a market to a particular destination but who is having trouble with that destination suddenly to change plans and dump a large amount of product into another market which could have an adverse effect on people who had spent some months or years establishing a credible marketing plan in that particular destination. I think the committee took note of their concerns in a very credible way. 
We acknowledge that the removal of quantitative restrictions does not mean that any grower does not have the ability to consider and formulate a marketing strategy that he or she will maintain throughout any particular season of export to any other nation. The growers were concerned about whether they would still have the ability to manage the flow of fruit on a consistent basis and according to their production processes their pack houses shipping requirements and shipping availability to any market. I think the changes the select committee has embarked on have given a level of comfort to those people who were concerned about the removal of quantitative restrictions. Certainly all members of the committee acknowledged the need for that. We must make sure as a country that is so dependent on exports—as I am sure Mr Chairman will appreciate—that we are squeaky clean. We cannot have an accusation raised against New Zealand that we are using quantitative restrictions to try to hike the price in any market. 
I would appreciate a comment from the Minister on those two points before I raise any other points of view. 
R DOUG WOOLERTON (NZ First) 
: 
 I will take just a short call. I want to address some of the concerns of those people who think there should be no regulation at all of anything—least of all exporting markets. 
Gerrard Eckhoff 
: That’s it! 
R DOUG WOOLERTON 
: Mr Gerrard Eckhoff is happy to be guilty of that. It is not right no matter which way we look at it. The great majority observes quality standards observes undertakings that are not necessarily imposed on them by this House. It is not right that they are taken advantage of by the few people who do not agree with the majority who do not go along with the majority view and who seek to get an advantage from the majority yet pay nothing. The majority of producers have come to Parliament asking for this legislation. 
It is also said along with that that these sorts of regulations often stifle enterprise. They stop people from doing things that are experimental that are entrepreneurial that change industries and that forge future relationships and markets. That is taken care of in this bill because there is the ability to have one’s case reviewed or to call the Horticulture Export Authority to account for that very reason. We must not stifle entrepreneurial activity we must not stifle experimentation and we must not stifle those who seek to do things in different ways. Just because a bill or an industry seeks the very very best and seeks to impose quality standards does not mean to say that those entrepreneurial activities are lessened or in any way damaged. 
I thought I would rise and point that out for those who may have nothing better to do than to listen to this Committee. I point out to them that those considerations have been taken into account and nothing in this bill will stifle the entrepreneurial pioneering spirit of good hard-working New Zealanders. 
GERRARD ECKHOFF (ACT) 
: 
 I too would like to take call—a relatively short call in deference to the forlorn looks of my colleagues. I would be happy to debate this issue till midnight but I can see a few distressed-looking faces around the Chamber so I will get on with it. 
In looking through the debate on the Committee stage of this bill I note that one of the concerns I have is this word “authority”. The word itself conjures up all sorts of images that take me back to my school days. In respect of the question of why we should have an authority we have been there and touched on that. But I have learnt during my 30-odd years in farming and in my time in politics that it is not so much the make-up of a system that is important as the quality of the people within that system—the authority itself the handful of people who make up that authority. I am perfectly sure that at this time we have excellent people on the Horticulture Export Authority. I am sure they are very sensible decent honourable people. 
But what happens if there is a change? What happens if some individuals are appointed to this authority who turn out to be absolute disasters? I cannot see anywhere in the legislation a provision that will allow for the removal of those people. There is no allowance for a petition or whatever by Kiwifruit Growers for example if it is unhappy with the performance of one or two members of the authority and wants rid of them. I emphasise again that it is the individuals who make the difference. Whether they be in a political party or on an authority or on a regional council does not really matter. It is not so much the system; it is the individuals who make the huge difference. 
 I am delighted to see that the sensible people on the select committee—myself included of course—ensured that there was an appeal provision. That is hugely important because an individual who is not satisfied who does not believe that he or she has had a fair shake from the appeal authority can go to an arbiter. Many would say that is not appropriate either and is like one or two individuals making a choice for a family. I come back to Maori people who wish to export their own fruit: if the arbitrator and the authorities say no then that is it. Where do those people go? They go nowhere. There is a real problem there. 
I will touch on the views of Mr Woolerton—who I am sure is widely respected in the Woolerton family—who talked about the rights of the majority to impose on minorities. That the majority can always impose is a thing called democracy. The real question is not when or whether—not whether they can; of course we know that they can—but should they? Should we always allow minorities to have their say and do their thing? I think that in a society like New Zealand we do and should allow it. In this very House we used to have Labour and National—the old school the old parties—dominating politics in this country. People said that their time was nigh. People like to see minority points of view being expressed. I am most certainly in a minority here this evening—and it is a hugely honourable position to be in. The point is that Mr Woolerton who is a member of a minority party in Parliament says that the majority should always be able to impose its views on the minority. No it should not. The right of the individual is hugely important in our society and the views of individuals who get together in a small grouping should be respected. As long as they do not impose their views on others then that is entirely appropriate. I am opposed to the tyranny of the majority just as I am opposed to the tyranny of the minority. 
SHANE ARDERN (National—Taranaki - King Country) 
: 
 I rise with a great deal of enthusiasm to speak on the Committee stage of this legislation. In particular I want to speak on clause 5 which relates to the quantitative restrictions on exports. The reason for that— 
R Doug Woolerton 
: A few good frosts would fix that. 
SHANE ARDERN 
: That is right a bit of bad weather would fix it. I see my colleague Mr Ian Ewen-Street over there and I would like him to go out and check on the poor old pohutukawa tree as I think it may have been cuddled to death by a helluva lot of people. It may recover through the extra carbon dioxide that it has had to inhale over the last few hours but its roots and bark have had a helluva pounding with the amount of cuddling it has had out there in the last while. Coming back to the export of kiwifruit— 
John Carter 
: Do you get the same with cabbage trees? 
SHANE ARDERN 
: I am not sure. No I do not think so. We could probably get a kiwifruit vine to grow over a pohutukawa tree and then we would be able to have both pohutukawa flowers and morris dancing with kiwifruit hanging from above. 
I would like to talk about clause 5 with regard to the quantitative restrictions on exports. The problem when there is any type of regulation around an export industry—and the ACT party will champion this—is that we get into a position where we could potentially be criticised by other exporters or other nations that are involved in exporting as putting in place some kind of non-trade barrier. We have to pay attention to just how that operates. 
I think that is the reason why the select committee gave a considerable amount of consideration to this clause and came up with the removal—or clarification I guess is the way to put it—of quantitative restrictions on exports. Even though there were those who would have liked to see some brackets put around it—and I believe that they put forward very good reasons for wanting to see that—the problem is that we then have a battle when we go overseas to try to develop new markets in places where there are tariffs and quotas. Those who do not want our products to be exported into their market will say: “Hang on a minute you guys are doing this back at home and now you are complaining about the restrictions that we place on the products that we have.” So there is a high degree of sympathy in the National Party for making sure that legislative mechanisms that others could use against us are not put in place in that way. I am pleased to see that the select committee gave some time to that. 
Some Maori exporting groups oppose the idea on the basis that they would be restricted in terms of the markets they were developing. There may be some truth in that and it is one of the things that the committee no doubt had to weigh up. The fact is if we allow small quantities of fruit to go to where our markets know and trust the brand and it does not meet the quality that has been established in that market then equally we can damage that market or damage future potential markets with regard to where we export. 
It is always a mixed bag in terms of trying to balance regulation restrictions criteria around the size and quality of fruit with those people who may have developed a niche market somewhere—which may or may not grow—and feel that they are being restricted because of the regulations we have put in place. I understand that the select committee gave a lot of consideration to that. I understand that the overwhelming majority of the industry—something like 90-odd percent of those with products being exported—came down on the side of the regulation that the committee finally finished up with. 
I think that on balance Parliament today will not exclude anybody to any great extent and will allay the fears that some people put forward in respect of what may happen with a non-trade barrier against New Zealand if we went too far with the regulation. On that basis I consider the bill a very good idea. 
Hon DAVID CARTER (National) 
: 
 It is all very well for the Minister in the chair the Hon Damien O’Connor following his elevation from the Primary Production Committee now to sit in the Committee stage and refuse to answer the valuable questions that have been raised. I take the opportunity of raising another couple of questions in the hope that the Minister will rise to his feet and earn his salary today by answering those questions. 
I was particularly concerned about the pre-information on the growers who would object to the bill. Allegedly some growers were marketing their product quite successfully in Australia—so they claimed. There were allegations that some of those growers were then on-exporting to Australia. We received one written submission from Te Awanui Huka Pak Ltd. It was a written submission only. There was not the opportunity for those people to present before the select committee but to my knowledge they were the only people who were adamantly opposed to the legislation—that was the only evidence that the select committee got. I want to make sure that the Minister informs the Committee before we vote on the third reading today that there is not a number of other people out there who for one reason or another did not have the opportunity to present to the select committee. I would appreciate that point being answered. 
The second point as today I again look through the submissions from a number of submissioners relates to the issue of quantitative restrictions which has been discussed widely in the Committee stage tonight. The other issue that was evident throughout the submissions we have seen was the significant impact that trade restrictions are having on New Zealand exporters to other countries. I happen to know that the Persimmon Industry Council was meeting with the executive of the Government yesterday trying to progress its case for assistance from the New Zealand Government to get access for its product to America. 
 We know of the difficulties we have had with our American friends over recent months. We know of the insults that have been traded. We suspect that those insults have meant that the persimmon industry of New Zealand is now suffering because of the comments made by the Rt Hon Helen Clark. I would like to take the opportunity of getting the Minister to assure the Committee that the meeting did take place yesterday between the Persimmon Industry Council and himself or his senior Minister the Hon Jim Sutton. I would certainly like to be assured today that if that meeting took place every encouragement was given by the Government that the Ministry of Agriculture and Forestry and the Ministry of Foreign Affairs and Trade will work with this industry and in fact with all the horticultural industries identified through the submission process on this bill. We are passing legislation today to tidy up our side of the Act but we want to make sure that every effort has been made by the Government to make sure it is furthering the interests of New Zealand growers in gaining access to other markets particularly the United States. 
Finally I want also to seek an assurance from the Minister that he will convey those thoughts to the Rt Hon Helen Clark. I ask the Minister to please ask her to restrain herself. 
R Doug Woolerton 
: He’s too busy on his immigration portfolio. 
Hon DAVID CARTER 
: I did not know he had one. I thought his portfolio was racing. Has he been moved up? 
John Carter 
: A couple of places. He’s a very good Minister on immigration. 
Hon DAVID CARTER 
: Oh good. I know that the Minister is now keen to take a call. Following some suitable answers I think we could then move to the third reading. I do want the Minister to take the concerns of the Committee to the Prime Minister. 
John Carter 
: Now? 
Hon DAVID CARTER 
: Absolutely! We could break for 5 minutes if he wants to. I want the Minister to give the Prime Minister sincere advice that it would be better if she does not know anything about foreign affairs and the damage she does to trade to please stay out of it. We were able to tell the Persimmon Industry Council that we sympathise with the representations it made to the National Party yesterday. We do sympathise with the position it found itself in. It is comments that are made perhaps in the heat of the moment by a Prime Minister who should know better that have on-going ramifications that make it very very difficult for growers of our produce in seeking access to markets particularly the United States markets. I look for that assurance now as the Minister is about to rise to his feet. 
Hon DAMIEN O'CONNOR (Associate Minister of Agriculture) 
: 
 I am happy to take a call and answer a couple of the issues raised by the chairman of the Primary Production Committee. Firstly I turn to the growers who potentially were objectors to the bill. We understood that there may have been some objectors to the bill but in the end the fact that there were no substantive submissions opposing the bill leads us to suggest that there is a maturity in the kiwifruit industry that understands that collaborative marketing is beneficial to each and every one of the growers while there is an ability for them to expand the opportunities through entrepreneurial work which the growers can undertake themselves. 
The second point relates to trade restrictions. We understand that there are always difficult trade restrictions facing New Zealand exporters. This bill is an attempt to work through those things in a very measured way—in a way that does not upset any of our trading partners. They have an assurance about the quality of the exports they are getting. 
With regard to the US we are very very good friends with the US. We are also very grateful for the efforts of the US administration in assisting us to get exports into their market—unlike the comments made by some politicians that we have had in recent days. 
Finally I understand that quantitative export restrictions were a key part of the discussions at the select committee. The officials identified them as being potentially at odds with our position on free trade so they through this bill advised us that we should remove any ability to have quantitative restrictions. Effectively that will mean that those exporters who work in collaboration through the Horticulture Export Authority do not necessarily have to limit the amount of fruit they put into a market. 
However there was an understanding and a discussion at the select committee that the strategy should incorporate market development. It is important not only for the growers but also for the wholesalers and the retailers in the markets that they have a consistent supply and a consistent quality of fruit. The inclusion of market development as a key consideration of any strategy is a positive step forward. It offsets some of the concerns of some exporters that removing quantitative restrictions would have led to a free-for-all and perhaps to the dumping of large volumes of product into a market at an inappropriate time. I am sure that importers of our products will appreciate this and it is for the benefit of the kiwifruit exporting industry as a whole. 
Clauses 1 to 11 agreed to. 
Bill reported without amendment. 
Third Reading 
Hon DAMIEN O'CONNOR (Associate Minister of Agriculture) 
: 
 I move  
That the New Zealand Horticulture Export Authority Amendment Bill (No 2) be now read a third time 
. The Horticulture Export Authority was established in 1987 under the New Zealand Horticulture Export Authority Act to promote the effective export marketing of horticultural products. It has achieved that very effectively. In the last financial year around $125 million of horticultural products were exported under the Act. Squash avocados and summer fruit were the major contributors to that $125 million of exports. 
The bill we are dealing with was introduced into the House in March 2003. It went to the Primary Production Committee for consideration where a large number of submissions were heard. The bill has three objectives as stated. The first was to enable the export of kiwifruit for consumption in Australia to be facilitated under the Act. Because the export of kiwifruit comes under the Kiwifruit Export Regulations 1999 there was a requirement to adjust the New Zealand Horticulture Export Authority Act to enable the Horticulture Export Authority to regulate the collaborative marketing of kiwifruit into Australia. The submissions from the kiwifruit industry demonstrated a clear mandate to the Primary Production Committee for amendment to this Act. 
The second aim of the bill was to ensure consistency with New Zealand’s international obligations. It was achieved through the bill by preventing export marketing strategies from imposing quantitative restrictions on exports under the Act. The committee improved the clarity of the bill in that respect through proposing amendments that have now been incorporated into the bill. The first of the amendments was the insertion of the words “market development” into the bill to ensure that an export marketing strategy while not imposing quantitative restrictions on the Act would indeed allow sensible consideration of market developments and long-term market access. 
The third aim of the bill was to improve the administrative provisions in the Act by applying hearings and appeal provisions to the licensing decisions of the Horticulture Export Authority. There is also now an ability in the bill to allow the Horticulture Export Authority to cancel redundant export licences. That will assist the authority in keeping an up-to-date roll on those who are exporting. 
Finally I would like to thank the Primary Production Committee under the chair of David Carter. It has done an excellent job in making some minor amendments to the bill. That was necessary and it will certainly ensure that we get good solid and consistent value—the best value we can—from the Australian market which does not undermine exporters’ efforts in that area. I commend the bill to the House. 
Hon DAVID CARTER (National) 
: 
 National supports with pleasure the third reading of this bill. Initially I want to make two points. First I want to acknowledge in this third reading the tremendous turn-round that has occurred within the kiwifruit industry of New Zealand and I congratulate Zespri and the growers on the progress that has been made. It was not many years ago that we perceived that industry to be an industry on its knees and now it is enjoying record returns. So Zespri as an organisation with the support of growers has done tremendously well over those intervening years. 
The second group that I want to take note of today is the Horticulture Export Authority itself. The authority has been a very successful mechanism that allows the control of horticultural products under a framework. This results in the betterment of those products that are now included within the product groups under the Horticulture Export Authority. Products like buttercup squash table grapes chestnuts persimmons avocados tamarillos boysenberries and Nashi Asian pears just demonstrate the wide diversity of horticultural exports from New Zealand to overseas markets. The producers of these individual products would if left to their own resources find it difficult to get a cooperative marketing approach to the world but this mechanism provides a highly successful means of New Zealand having the ability to market its product in an orderly fashion to present top quality produce to markets around the world. So I pay credit to them. 
The reasoning behind the amendment to the Act has been well explained through the second reading and the Committee stage and I do not intend to go over it again now. Suffice it to say that the Australian market was initially tried as a domestic market. That meant that the returns from the Australian market were not being maximised to the benefit of New Zealand growers. There was also the side issue—but an important side issue—reported to the select committee of some New Zealand product going through Australia then being re-exported to other nations to the detriment of the efforts of Zespri in those particular countries. I think that was a valid concern. It was a loophole that needed to be closed down and therefore National is happy to support that. 
I conclude by thanking my colleagues on the select committee. We have had a very significant workload this year with another matter that we hope to bring to fruition in approximately 4 or 5 weeks’ time. In between the hearings we have had on that other substantial matter we have managed to facilitate the legislation through the select committee process. With the amendments we have made through that process the bill is now back before the House in a very commendable shape. 
R DOUG WOOLERTON (NZ First) 
: 
 I nearly fell over a wee while ago—not as a result of the gin—when I heard my colleague Gerrard Eckhoff speak about the tyranny of the majority. That was a bit unusual coming from him. 
Every producer every business person and every marketer has the right the opportunity the privilege and I believe the obligation to maximise the returns of its products to the benefit of its growers. If that industry market group of farmers or horticulturalists can do that then I say: “All strength to their elbow.” They are marketing in niche markets for the benefit of New Zealand and conducting market development which is very costly. I believe that this bill will reward them for that and help them to get the better returns they seek. 
We cannot let this bill pass without mentioning the competition. I read in trade magazines just the other day that the Chinese—from whence kiwifruit came; it was originally the Chinese gooseberry—are getting into the market in a big way themselves. They are formidable opponents in this area. They have thousands of years of culture behind them. They have been involved in agriculture for thousands of years and they are not to be taken lightly. 
This industry of ours which is still a very very small industry by world standards needs all the help it can get. It needs the reputation that has been built up it needs all the authority the Government can give it to make sure that its markets are not invaded by inferior quality fruit and at the same time it needs to be very quick on its feet to move and develop new products—and it can still do that. In other words the industry needs to keep on its mettle and I am sure it will. I am sure this bill will help it. 
If we were to go out in a naive fashion we would have individual farmers—or individual traders even—in the most ridiculous scenario trying to sell their produce to huge supermarket conglomerates which is where the buying power is held nowadays. It is not just a matter of going and selling on a fair market. We are selling on markets where every objection will be put up. They will put up every tariff. 
 They will put up any blockage possible in other countries to either stop or make it harder for our exports to enter their market and chief among them are the huge supermarket conglomerates. They will use their power to lower the price to our exporters and therefore lower the prices received in New Zealand. We rely on those prices for our standard of living. This bill will do what it can to stop that practice from happening and New Zealand First is all for it. 
GERRARD ECKHOFF (ACT) 
: 
 Despite what some might think in listening to this debate this bill is one of the more important measures that we have around this House. It is very important because it affects the wealth of this country and it affects those who create and export that wealth and add to our overall prosperity. 
In listening to previous speeches I could not help but wonder—as I listened with my extra-sensitive perceptive ears although I am rather deaf—just how long ago it was that we sat listening to speeches some that Mr Speaker might well have heard that lauded the formation of the Dairy Board the Meat Board and indeed the ENZA Board. All these boards became single-desk authoritative bodies that we are now debating at this time. We also remember that although at the time they sounded like a very very good idea they have now passed into history. So time will tell whether I am right or wrong. I suspect that in time—perhaps 10 years; I do not know when—we will be back here wondering why we passed this particular bill. 
That aside I have absolute pride in speaking to this bill because the philosophy behind it is hugely important. Indeed the principle behind it is of equal importance. It is about the right of people to export their own product—it is not difficult; it is quite simple—and it is about innovation. It is about the right of indigenous people as I have mentioned in previous speeches to sell their product without input from overwhelming cost structures which inevitably— 
R Doug Woolerton 
: Which ones are you talking about? 
GERRARD ECKHOFF 
: We have one or two still I believe in the North Island—but we will not go there. 
The fundamental basis behind that philosophy of ensuring that people have the right to sell their product if they create it is a hugely important one. That is why I will vote against this bill out of principle not so much out of the practice or what is going to happen over the next few years. I am sure things will go along quite nicely in the interim but long term I suspect we will be back here again wondering why we passed this bill. 
I also reflect on the fact that the wine industry has become hugely more regulated. The regulations were three or maybe four pages long as I recall but now they are 100 pages. We have had concerns from the World Trade Organization about the near monopoly that Fonterra operates. In this global village of ours these are very genuine and real concerns that this House should be concerned about. Our trade Ministers of all Governments present and past go overseas exhorting the rest of the world to get rid of controls and regulations and unless we do something very similar we really cannot stand at the top of the mountain and say: “We’ve done it follow us.” We are still looking for this measure of protection. If the rest of the world sees that we are not pulling our weight or we are a little less than pure as the driven snow as we pretend we are then I suspect we will have some trouble convincing countries like America and Europe that they should do away with regulation and allow the trade of the world to interact with one another. It will find its natural balance as indeed the kiwifruit industry will under the same basis. 
It is with some ambivalence—I think that is the right word—that this bill will pass as far as I am concerned. I respect the rights of kiwifruit growers to form themselves into a bloc if that is what they wish but I wish also that other people would respect the rights of individuals—and this is what is so important—to do their own thing throughout the world if they so choose. It is very foolish people who go out there and undercut their neighbours because ultimately they will undercut themselves and that adds nothing. 
I understand why people are very much in favour of some sort of export authority. However I come back to the philosophy and the principle. It makes me feel rather sad that we have come to this situation but I do have to respect the rights of kiwifruit growers to form themselves into a grouping. That is their right and their privilege. 
Bill read a third time. 
The House adjourned at 5.14 p.m. (Thursday)