Parliamentary debates: Saturday, 4 July 2026

09:01

Madam Chair, thank you. Yes, we’re on Part 2—I will just indicate to you, Madam Chair, that I would like to go subpart by subpart, noting the three subparts here.

Starting from Part 2, and particularly later on, we’re getting into the operational bit. So it’s a good chance for me to ask some questions around specific clauses. I’m going to start with clause 12, “Advance mental health directives”, and I want to check with the Minister for Mental Health: clause 12(1) says, “An advance mental health directive may specify the matters”. Now, we see two columns, the left and the right column. Can I just check: in terms of my interpretation of “may specify”, where the person is performing a function or duty, can they selectively include which part of that column they would use in the exercise of their power—which to me is what “may” would imply—or do they have to consider all five aspects of that column but they’re able to add additional things on top of that? So this is page—

Sorry, which page?

Page 22, clause 12(1)—the very beginning of Subpart 1.

Thank you.

Yep, so it’s mainly just on those five criteria that we’re looking at—or content—and the obligations that are associated with that. Does a person performing a function or duty need to include all five, or can they select one or up to five, or do they need to, as a basis, consider all five and then choose to add additional things on top of that? I just want to get a sense of what “may specify” means.

In terms of clause 13, my question is around the process. In clause 13(1), “A person may make or revoke an advance mental health directive” if there’s a mental health practitioner involved. But, then, if you’re looking at the witnessing of the advance mental health directive in a later clause, in clause 14, the mental health practitioner doesn’t need to be present when the directive is revoked or made. Can I just check how that process would work and whether the people who are witnessing the advance mental health directive, either the making of it or the revocation of it, need to have some sense of what the mental health practitioner is informed of.

09:04

Thank you very much, Madam Chair. The question was around advance directives and around the five—I think the word to use there is “can”. A mental health directive can set out within those five. On the question about the requirement of tāngata whaiora, which, if I take a step back, is largely a question around whether tāngata whaiora are involved in their care planning, there will be decisions to be put under the compulsory order or discharged from that, and my expectation is they will be part of care planning.

09:05

Thank you, Madam Chair. I’m working around clause 17 of the bill, but I would like to jump now to the Minister for Mental Health’s Amendment Paper 648, in the interests of getting into probably the most substantive part of this debate, at the start of it, and just make a very short contribution to say that one of the small wins that Labour members were able to make was to get the presumption that mothers and babies would not be separated unless there was good reason to do so. I know that my colleague the Hon Dr Ayesha Verrall has a number of questions on this.

My very first question is just: what change, in his words, does the amendment make to the presumption? We did get advice at the time from officials where the wording was provided by them. We knew that this was a real balancing act between the rights of the parent to not have further distress added by their child being taken away, versus the rights to safety of the child. It is a fine balancing act. I can imagine that the scenario that absolutely everybody wants to avoid is making that wrong judgment and having a child harmed in the process of them being kept together. Nevertheless, when I look at the wording of this Amendment Paper, it does seem to distil down or sort of over-explain the caveats that are already in there. Just a very first explanation of how this differs from the current wording would be helpful.

09:06

This was canvassed last night. The principle here is workability, and it is to keep the intent of what the Health Committee members intended—but workability with guardianship laws.

09:07

If the Minister’s referring to the point in the debate that we had an exchange about last night, actually, the question that was asked at that point was the purpose for Amendment Paper 648 being presented so late, not the substance of this discussion, which we’re pleased to be having now.

I’d like the Minister for Mental Health to explain: it seems that the guts of this is that whereas we had clause 38A(1), previously, that said a birth parent is entitled to have their baby remain unless they agree or there is felt to be a change necessary in the best interests of the baby, now the clause is rewritten to emphasise that decision makers must favour the interests of the child. I wonder why that change is necessary, because it was already in the version that the Health Committee voted on—that the safety of the child would be a reason for separating the mother and the infant.

What I guess is uncomfortable, currently, about the Minister’s amendment is that it does seem like what was a statement with an exception that recognised the parent now appears to have no discussion about the right of the parent in the current language. I worry that that will lead to situations where it is just presumed that separating a baby from their mother is always OK. I understand that in the Minister’s comments last night he indicated that everyone has the same concern. I think that is correct that we all do. No one wants to see situations where either parent or baby is harmed, but it does appear, in the present wording, that there is very little in there in favour of the rights of a parent who is at risk of losing the opportunity to be with their baby. It’s not an insignificant issue; it’s not a small, rare situation. Post-partum is a time where there is a higher risk of major depression. Post-natal depression can be a cause for coming under the Act, and there are facilities in New Zealand specialising in the care of people in these situations.

So it is important that we get this right, and I’d like to understand why the language seems to have been so substantially reversed so as to now have no statement in the bill outlining why it is important for a mother and their child not to be separated.

09:10

I can assure the committee that the presumption remains that the baby remains with the parent, unless the baby’s safety outweighs this.

Just a supplementary on that. The language, if we look at that in testing how that applies—

Just a quick supplementary, please, because I was actually watching this conversation last night and we’re in danger of overdoing it. So be crisp and clear.

Yep. In new clause 38A(1A) on Amendment Paper 648, for example, if we look at paragraph (a), there’s very clear language there that they “must give priority to the safety and well-being of the baby;”. If we look at paragraph (b), it doesn’t say “must consider” or “must give weight” to the preferences as to childcare; it simply says “must make reasonable endeavours to consider—”. That is how watered down the language is, and so there is a clear weighting difference between those two paragraphs. I ask whether the Minister for Mental Health could explain how he believes that that reaches a balance.

09:11

The parent is entitled to remain with their baby unless the practitioner considers separation is in the best interests of the baby.

Madam Chair.

Is it on the same issue—

Yes.

—because the Minister has been very clear. So is it new?

09:12

Well, yes, it is. It seems that the Minister for Mental Health, in order to justify the amendment’s language, has gone back and repeated the language in the Health Committee’s version, and so it seems very odd to me that his justification for what he’s doing was the select committee’s justification. I have not heard a reason why the language needs to change.

Well, we’re now traversing previous ground. We’ve established in the committee that it’s the same intent and presumption, and the change is in line with guardianship laws.

I’m going to call Dr Lawrence Xu-Nan, but we’re moving on from that particular issue, and I want to focus on the Minister’s Amendment Paper or any changes since the select committee.

This is the Minister’s Amendment Paper.

Yes, I know that that was. I’m just making it very clear that that’s what we’re focusing on this morning: any amendments, or the Minister’s amendments—new.

09:13

Madam Chair, can I just interrupt. I think it is important, because the claim was made that it was the select committee language. It’s not the select committee language; it is the Minister’s language, and it is that the birth parent is entitled to have the baby remain with them.

Madam Chair, thank you. Just for our clarification, because theMinister for Mental Health’s amendment to clause 38 is actually quite far down Part 2, and I still do have questions on earlier clauses in Part 2—would they still be acceptable? I do have—

As long as they are a change—something related to the Minister’s amendments or something new that didn’t happen in select committee—I’m happy to take your call.

OK. I do want to seek a couple of clarifications from the Minister on the earlier parts. Just to the Minister’s response to me regarding the advance mental health directive, I think that the clarification I was trying to get at is this. In clause 14, that directive needs to be “witnessed by a person”, but it doesn’t say that a mental health practitioner needs to be present, and so my clarification is: would the witness need to know or to have had interactions with the mental health practitioner ahead of time?

Madam Chair.

But I’m—oh, sorry.

Madam Chair, I could answer that directly.

Oh, sure—absolutely.

If the Minister wants to answer it directly—

Yeah, thank you—thank you.

To assure the committee and the member, the witness must be there when the advance mental health directive is being made and signed, as long—and I think people would expect this—as it is the responsible practitioner. I would just put it to that member, respectfully, that it was Kahurangi Carter on the select committee. This bill had a full public consultation before it came to the House, it has had a standard select committee process, and it is coming into the committee of the whole House stage with cross-party support.

Madam Chair.

Dr Lawrence Xu-Nan is still finishing his call, which we interrupted.

Thank you, Madam Chair. I agree, but we also need to note that this is the only chance—and this is one of the few chances that we can have things on the public record, as well. To be clear, when we are looking at it from a Hansard perspective, if any part of this bill is challenged in a court of law, it is the Hansard of this House that lawyers refer to, and not simply the department—

I do actually just contest with Dr Xu-Nan that there is also a record of the select committee available, and if colleagues have been on it and they have been satisfied to support that, I am just looking for areas that are outside of that select committee process. Thank you.

Point of order, Madam Chairperson. I’m just perplexed as to what appears to be your position that matters which were raised in select committee aren’t for debate in the committee of the whole House stage, because whilst I accept that there is a select committee report available, nevertheless, this is an entirely different stage of the proceedings and one which is, as we can see, a much more public and open debate. So whilst I can see that there might not need to be as exhaustive a debate as matters that are found in the select committee report, I’m just unclear that there’s some approach which says that because something was traversed in the select committee, it’s not appropriate to debate it in the committee of the whole House stage.

Dr Webb, I listened to the debate last night. We’ve had a couple of hours of debate last night on this and the select committee was mentioned extensively, and I have no objection to that being mentioned, but we’re not relitigating what’s gone on in the select committee, other than any Amendment Papers or any amendments that the Minister has made. Referral to the select committee is fine, but we’re not rerunning—we’re giving the advantage to members in the committee of the whole House who perhaps weren’t at the select committee to clarify some things, but this is not a rerun of the select committee. Thank you.

Thank you, Madam Chair. I do want to speak to specific clauses to ask for specific clarification, and I’m now moving on to Subpart 2. I’m just checking: one of the languages we did see previously was around the term “on a sustained basis,”—

Which clause in Subpart 2?

Clause 16(2), which begins with “In proceedings or processes to which this section applies,—”. I want to check with that, because we’ve seen the language of “sustained basis” when we are determining if a person under compulsory care—when we’re looking at the maximum degree appropriate to their capacity to participate, would that also require it to be under a sustained basis, or would it just be that while in this minute, the person is able to have the capacity to participate, and they can participate—yeah. So I would like to know what the sustained basis test is, if possible.

My next question for theMinister for Mental Health—and I’m going to keep it to these two because I have only two questions for Subpart 2 of this part—is when we are looking at clause 17, “Hui whaiora (well-being meetings)”, what I can’t see at this stage in this particular clause—clause 17—is how a person who is requesting a hui whaiora is informed. Are they informed of the hui whaiora and the options they have prior to it, because if I’m looking at clause 17(2)(a)(ii), the responsible practitioner must request a hui whaiora if the practitioner is satisfied that “the person under compulsory care— … has requested” it, but a person doesn’t know that there is such a thing as a hui whaiora, how would they request it? I just wanted to check whether, as part of this, a person would be told up front their different options.

09:19

I think that that’s a valid question, and I can confirm that that is the case. The question around decision-making capacity has been well traversed—about the principle of it fluctuating—and that’s why we have the review every three months of the care order and the care plan.

09:20

Madam Chair, we may move on from the previous discussion about the amendment and the issues surrounding the separation of mothers and their children. I do want to just put some issues on the record before we move on from that area. Yes, it’s correct that this process isn’t one that can replace a select committee, but we did have a long and fulsome Health Committee hearing and didn’t have the objections that appear to have come from officials raised at that point. For those of us on the Opposition who are considering these very important issues that relate to the human rights of mothers receiving compulsory care, I hope it is understandable to colleagues why it is that we feel we haven’t had a full opportunity to ventilate those issues.

Some of the answers to questions about why the changes are required appear to be somewhat superficial and don’t offer us the reassurance that we might have had if we had either had this discussion at select committee and the opportunity to go into it further with officials, or if we had even had a week of notice and the opportunity to reach out to groups who submitted on these issues, go back to them, and ask their perspective on this change. My colleague Ingrid Leary will be caucusing with other members of the Labour caucus about our vote on the amendment. I don’t want to get ahead of whatever decision is made with that, but just to assert that it is very reasonable, for a procedural reason, for the Labour Party to vote against this amendment if that’s the decision colleagues choose to take.

09:22

I move, That debate on this question now close.

The question is that the Minister’s amendment to Part 2 set out on Amendment Paper 648 be agreed to.

Ingrid Leary’s tabled amendment to clause 12 inserting subclauses (3) to (5) is out of order as not being in the correct form of legislation.

The question is that Ingrid Leary’s tabled amendment to clause 12 inserting subclauses (3A) to (3C) be agreed to.

The question is that Ingrid Leary’s tabled amendment to clause 17 inserting subclauses (4A) to (4C) relating to whānau participation be agreed to.

Ingrid Leary’s tabled amendments to clause 17 inserting paragraph (ca) into subclause (4) and inserting new subclause (4A) are out of order as not being in the correct form of legislation.

Members, Ingrid Leary’s tabled amendments, inserting “or their agencies” into clause 23 and clause 24, lend themselves to being grouped. I will put a single question on them unless members indicate that they wish to vote differently on a specific amendment.

The question is that Ingrid Leary’s tabled amendments inserting “or their agencies” into clause 23 and clause 24 be agreed to.

The question is that Ingrid Leary’s tabled amendment to clause 24(2) replacing paragraph (c) be agreed to.

The question is that Ingrid Leary’s tabled amendment to clause 24 inserting subclauses (2A) to (2C) be agreed to.

The question is that Ingrid Leary’s tabled amendment to clause 37 inserting subclause (3) be agreed to.

The question is that Ingrid Leary’s tabled amendment to clause 38 replacing subclause (1) be agreed to.

The question is that Ingrid Leary’s tabled amendment to clause 38 inserting subclause (5) relating to additional safeguards for children and young persons be agreed to.

The question is that Ingrid Leary’s tabled amendment to clause 38 inserting subclauses (5) to (7) relating to the rights of children and young persons be agreed to.

The question is that Ingrid Leary’s tabled amendment to clause 39 inserting subclauses (2A) and (2B) be agreed to.

09:36

Thank you. I have been one of the people bringing the voices of some of those who spoke to us in the Health Committee into the debate, and I intend to do that where it is appropriate, in this section, if that’s all right with the Chair.

As long as it’s not long.

Given the number of clauses in this rather large bill, we have been running fairly tightly, I would suggest, Madam Chair. If I look at clause 41 now, this is a clause that worries us, because it currently seems to extend powers to non-medical people to be able to make decisions around compulsory care. The questions I have are, really: what has been the basis of this, and has the ministry somehow included in its thinking whether it’s primarily intended to address workforce shortages rather than improve clinical care? I won’t go back into the questions that were raised in the definition phase, but, very clearly, there has been a broadening under some of the definitions of who can make decisions.

My specific questions are: why does clause 41(2) allow any mental health practitioner to be appointed as a responsible practitioner rather than requiring a medical practitioner or a psychiatrist? What clinical decisions are they expected to make under the bill, and are those decisions appropriate to be exercised by someone who is not medically qualified? If they’re not a psychiatrist, who, ultimately, carries responsibility for the diagnosis, the treatment decisions, and the compulsory care reviews? What safeguards are there for the postcode lottery across different districts, where one director may appoint nurses or psychologists in one area, while, in a different area, somebody else might only appoint psychiatrists? If the Government intends psychiatrists ordinarily to perform this role, why is the expectation of that not reflected in the legislation? What evidence demonstrates that extending the role beyond medical practitioners improves patient outcomes?

We do know that we have a shortage of psychiatrists, and that’s, indeed, across the mental health services. The Minister for Mental Health himself alluded to the associate psychologist role and the fact that they do not have clinical competence as currently assessed under the Act. We need to be really clear about who is expected to be authorised under this provision and who will be accountable under this provision. Would the Minister look at my amendment 19A, which would tidy this up for him?

09:39

Madam Chair, thank you very much. The substantive part of that line of questioning is around the member’s amendment, which I would not support. The change is unnecessary.

The question was raised about the postcode lottery. Well, I would put the principle of the law that would prevent that postcode lottery, because the Director of Area Mental Health Services needs to be satisfied that the mental health practitioner being appointed has undergone the relevant training and competency. That is important because only a competent and trained practitioner can properly operate within the scope of practice under the Health Practitioners Competence Assurance Act.

09:40

Thank you, Madam Chair. I want to start with Subpart 1, around compulsory care requirements. I’m going to start with three of the clauses. Starting with clause 41(1), which is that “each person under compulsory care has a responsible practitioner.”. What I can’t find from Part 3 is whether there is a ratio requirement when it comes to how many—

Dr Xu-Nan, could you just repeat that clause? We just had a distraction here. The Minister is just asking which clause it is.

Clause 41(1), page 38.

Thank you.

I just want to check if, for each responsible practitioner, there is a ratio for how many persons under compulsory care they should be in charge of.

The second question is on that as well, if the Minister wouldn’t mind clarifying. If you’re looking at regional or rural New Zealand and you have a person under compulsory care, what is the distance or geographical distribution, if that is applicable, of how far a person would need to travel to see—if they do need to see—a responsible practitioner? Or does it allow for, under that clause, the use of audio-visual links, etc.,—people can FaceTime, Zoom, or etc., I just want to kind of understand what it meant by “has a responsible practitioner”. That’s my first question.

My second question is on clause 42(1). This is to do with rōpū whaiora, and it says, “collaborative care team”. I just want to check with the Minister if there is an expectation to what the size of a team is. Presumably, it will be more than one. Has there been any discussions or any base understanding of—are we looking at two to five, etc.? I think that’s also really helpful to know, because, as we see, the intent of the bill is to ensure that people don’t fall through the gaps, so I think that’s an important question.

I am going to jump a little bit—noting that others may have questions before that—but I want to just mention clause 49, which is “Reduction and elimination of seclusion”. I would like to speak to my colleague Kahurangi Carter’s amendment as part of her Amendment Paper 646, noting that there are a few other bits to it on later parts. But I want to speak to her amendment for clause 49. This is something that the Green Party has mentioned. I mentioned in my second reading speech that there doesn’t seem to be a sunset clause when it comes to seclusion. Would the Minister mind considering the amendment, which is to add an extra clause to say that “This section is repealed 5 years after Royal assent”, which would imply that a sunset clause is five years, or would the Minister prefer to give a commitment that we are going to be doing away with seclusion within five years?

Finally, there is the amendment from Kahurangi Carter, inserting new clause 49A, which is just to specify, around the prohibition on the use of seclusion, that a person under compulsory care must not be placed in seclusion. This is, again, something that the submitters have asked for.

09:44

Thank you, Madam Chair, and thanks to that member for those questions. The first two questions were more around, I suppose, how we operationalise the Act, which I think is a fair question. There’s one around the ratio and the access. This being an operational matter, the guidelines and secondary legislation will guide that practice. Also there was the question around size of the team and, I suppose, multi-disciplinary care planning teams. The size and make-up of a team is expected to reflect the needs of the person.

To the more substantive question around seclusion, I think we’ve heard loud and clear that, as a direction of the country, we need to look towards removing seclusion in our mental health services. The first point I’d raise is it’s not necessarily a question of money. If you look at, potentially, some of the announcements of the last Government around funding into mental health, the data shows seclusion rates actually went up. The conclusion I’ve drawn from being Minister is not only is it about adequate resourcing—I’m not disagreeing with that—there is a particular focus needed on training and the workforce. I would like to share a reflection where I visited an inpatient facility, not far from here, that had actually reached zero seclusion because of a decision made by the clinical leadership team around the culture of the organisation. I think it’s incumbent on us, when we are aware that no comparable countries have achieved the removal of seclusion, that, as we move towards potentially being the first country in the world, we ensure that we have the right plan.

I’m comfortable that the regulations in the bill allow for ending seclusion. That’s why I do not believe there needs to be a sunset clause. What I’m also encouraged by is the Mental Health and Wellbeing Commission’s recommendation around New Zealand’s first seclusion plan that Health New Zealand has accepted to be published in 2027. My expectation with that plan is that it would set out a road map of how we would achieve that and that it would then be incumbent on any Government of the day to ensure that we follow the road map.

The final point I’d make is that the regulations allow for that and actually could be brought well forward from the five-year review and a lot earlier within the regulatory framework that this bill sets up.

09:47

Thank you, Madam Chair. I’m sure we’ll have a number of questions around the Minister’s response to that question on seclusion. I just want to tidy away the last clause that I want to look at before going on to clause 49, which is around care planning. The Minister himself, last night, raised the relationship between the compulsory care order and the person’s care plan under clause 43. It’s important because the compulsory care order authorises compulsory care but the advance directive or the care plan arrangement records a person’s wishes, preferences, and treatments. Understanding what parts of those will be given weight and when is really important.

My questions are: does a compulsory care order compel treatment generally, or does it only authorise the compulsory care that is subject to the treatment safeguards elsewhere in the bill? If a person has an advance mental health directive refusing a particular treatment, how is that reflected under the care plan required under clause 43, and, if they do refuse, what legal effect will that refusal have? Where there is an inconsistency between a care plan and an advance mental health directive, which one of those prevails? Shouldn’t there be a requirement under clause 43 to distinguish between treatment that the person consents to, treatment authorised despite lack of consent under the Act, and treatment that has been expressly refused in an advance mental health directive?

The reason I raise that is because we did hear evidence from people who had been subject to different treatments under the Act—some of them restraint treatments; some of them seclusion. Almost all of them universally talked about the increased trauma and the impact it had on their worsening mental health, and they also talked about not having a voice in the treatment that was applied to them. So, where we have an arrangement where that could be there in writing but there is also the prevailing clauses and powers in the bill, it’s really important to understand what the Minister’s expectation is around how that should prevail and what weight should be given to the wishes of the person receiving the treatment. After this, we intend to go on to seclusion as well.

09:49

I just wanted to supplement on clause 43 of Part 3 by asking and inviting the Minister to provide an explanation around the role of the whānau of the whaiora who is in care. As we see in the care planning, there’s great detail in terms of the review, the way that notes and the plan need to be updated, the way that the service is being provided to the whaiora, but I haven’t seen, within this part of the legislation, any mention of whānau and what the role of whānau is in the care planning. Further, how is the whānau engaged and kept up to date in terms of care of their whānau member who might be within care at that time? Particularly in the transition component of this clause, where you’re moving from service to service, how is the whānau engaged and how do they maintain connection to the plan of care for their whanaunga or tangata whaiora? I also acknowledge that, maybe, tangata whaiora may not have whānau there in support, so what advocacy or what supports, external to the service, independent or otherwise, may be provided within this care planning process so that whānau or an independent person or agency is there walking alongside the patient in care? Kia ora.

09:51

I thank that member for those questions. I think that the bill, quite rightly, as a part of some of the 10 recommendations, achieves the abuse in care recommendations of new roles, of independent roles, and of advocates as well.

There was a question around involvement of the family, and I think a good example of that is around the new advance mental health directives, where a hui whaiora must be convened if a person under compulsory care does not have an advance mental health directive to assist with decisions about their care. My expectation is that, where and as much as it’s appropriate, whānau would be involved; and if there was no whānau, then there would be the use of the new independent role in advocacy roles.

09:52

Turning to seclusion, we did have multiple submissions, including really strong submissions from the Mental Health Commission, page 10, clauses 47 to 50, and also the Ombudsman, pages 18, 19, 20—particularly point 88.

The question that we have is it feels like there is a practicality, kind of “we don’t have the resourcing to do this, but we might be able to one day”, and when I heard the Minister talk about a plan being ready in 2027, that sounds like we are inching at a snail’s pace to something that both the Minister for Mental Health has experienced and also we on the Health Committee had heard, has been able to be achieved in this country through planning, culture change, training, and so on. So my questions are: if he’s saying that seclusion is an objective of the bill, why is he still declining to set an end date? Doesn’t he accept that if there isn’t an end date, there is less incentive to change the system? The whole point of statutory safeguards is to require systems to get up to speed with things like human rights protections and so on. Particularly, if there had been a workforce training and resourcing statutory requirement, which is in my amendment, which I think the Minister is probably going to decline, in the workforce capability, then that would be really helpful, because it would set the Minister’s expectation. He’s said it’s his expectation, but there’s nothing in the legislation that reflects that expectation of the Minister. This would strengthen the expectation and make it very clear to the institutions what they need to do and there would be the requirement for there to be adequate funding.

What evidence does he have that five years is the right amount of time to transition away from seclusion? The Minister will be aware of my tabled amendment that says, “at least have two yearly reviews”, so that we can put some kind of pressure on the system to show the direction of travel. What message does retaining an indefinite statutory power to seclusion send to those services who had managed to eliminate it? It’s not just in Wellington; there is one in Auckland as well.

I’m curious to know if it’s the Government’s position that seclusion will always remain necessary somewhere in the system. I know there are different clinical and professional views on this, and I’d like to have on the Hansard what the Minister’s view is on that. I don’t have a position for or against it because I know there’s a lot of discussion and evidence, but it would be helpful to understand what the Minister’s own expectation is of that.

If we’re not ready to move to seclusion, can he tell us what specific workforce, infrastructure or funding milestones remain outstanding? If services are not ready today, isn’t that why the transition period of five years, which does seem generous and does seem proportionate—isn’t that the right time frame to be able to get that in order?

The final couple of points are really that he’s talked about regulation being able to be used in the bill to end seclusion, but, equally, there are force and search powers in clause 204, that also relate to those limitations on human rights. That worries us because we all know that any limitation on human rights should be in primary legislation. Wouldn’t it be better to lift and drop both of those elements into the bill—the sunsetting of seclusion as well as the limitations on people through force and search powers? Once again, it is feeling like bad lawmaking to be relegating that to regulation. I agree seclusion could be done through that, which is less problematic, but if we’re going to do that, we should have everything in primarily legislation, so we avoid the issues caused by clause 204.

Finally, the Minister has talked about the fact that seclusion won’t apply to under-18-year-olds. That’s something we absolutely welcome. The reason that we’re given also for the non-ending of seclusion is that other restrictive practices that could be harmful, as harmful or even more harmful, to adults will occur as a result. Now, the Minister can’t have it both ways. If that is the logic relating to adults, surely that is the logic relating to young people, many of whom, we have established, are also in these adult secure mental health facilities. Against the backdrop of what we were discussing in the committee last night and with Waikari Hospital and the Otago Daily Times story this morning, I think it’s important, particularly, to hear the Minister’s view about whether there could be an unintended consequence in the way the bill divides up the rights of under-18-year-olds with adults as we discuss seclusion.

09:57

There’s a bit in there, so I’ll step through it. I suppose we are slightly returning to Part 1. If I remind members that one of the principles in this bill is the principle of the least restrictive practice. The second is that this bill brings in quite significant safeguards. I’m confident that we are heading in the right direction as a country. When we came into office, seclusion rates had significantly increased, and the data shows that they have now significantly reduced. So we are on a direction as a country.

As previously said, I’m confident that we’ve got the right regulatory framework to ensure that we continue that direction as we work with the mental health system. I’m acutely aware, as that member is, that there is actually a wide-ranging number of views within the existing workforce and other advocates within the system that I think we need to bring along in that journey as well. There is a concern by some of the workforce around the risk of removing seclusion, and I think that does need to be acknowledged; and others, as was well-canvassed during the select committee stage, are concerned about the unintended consequences of seeing a reduction in seclusion but, actually, then seeing an increase in chemical and physical restraint as well.

There was a question about why we are confident we can remove seclusion or prohibit seclusion in under-18s but not apply the same measure in over-18s. Well, the advice around under-18s is that it is a very small number of young people that are secluded. I’ve just got the number here: 32 young people across all inpatient services in 2023-24, compared to 561 adults. The point I’d make there is that it’s very emblematic of past Governments that think they can put an end date somewhere and it will just happen. I think what we’ve shown around the reduction and the prohibition of seclusion for young people in this bill is that if we take a targeted approach, we can continue to reduce the numbers. That’s why the regulatory framework allows for that and also New Zealand’s first seclusion plan.

10:00

Thank you, Madam Chair. I just have one follow-up question on seclusion for the Minister for Mental Health, and then I’m going to move on to subsequent clauses. This is to do with new clause 49(1A), and it’s to do with reporting annually. Can I just check: as a part of that reporting, would the Minister also have an expectation that the average hours and the maximum hours that a person spent in seclusion will also be reported as a part of that report, particularly consecutive hours?

10:01

That data is already collected. I think it’s a very important point, because it’s not only the unique numbers of people under care but it is the total number of seclusion events, the total number of hours in seclusion, and also the ability to identify where the seclusion is happening within each individual inpatient facility or wider setting as well. We’ve also got the reporting on population groups, because, as we do know, Māori are overrepresented in seclusion rates. That’s why I welcome the public reporting.

Not only that, when you look at the seclusion regime that this is bringing in, there is a lot more requirement now on reporting. Services now have to report every time there is a seclusion, with the reasons why there is as well. That’s why this gives me comfort that, with the framework that this bill sets up, we can continue the direction of travel around reducing and, ultimately, eliminating seclusion.

10:02

Thank you for that, Minister. I think that is really heartening to hear, and I think, in that, I also implied that there would be reporting on consecutive hours as well.

I want to move on to clause 50, and this is on ECT, electroconvulsive therapy, and again it’s to do with reporting. I’m looking at clause 50(2): “The responsible practitioner must record the use”. I wanted to check: with that recording, will they, again, record the frequency of the use on an individual? Again, it’s part of that broader, I guess, accountability mechanism. That’s my question.

I know that others may have additional questions, but to signal to you, Madam Chair, my last question on Subpart 1 is on clause 52(1)(d), and that’s the right to repeal or review.

You may as well ask it now.

Yeah, I’m going to ask that now, and then, depending on the Minister’s response, I’m done with Subpart 1 and I’m happy to move on to Subpart 2.

I want to check with the Minister: paragraph (d) says, “a Judge of the High Court”. Can I just check whether it is only the High Court that is able to have the right to review this, and is there any sort of advice that the Minister has received on how frequently we would be looking at this anyway? Would it put a strain on the High Court system?

10:04

Just to tie off those last questions around seclusion and electroconvulsive therapy, I think the member Lawrence Xu-Nan does raise an important requirement around reporting and publicly publishing that data. That’s something that I take quite seriously. That would be my expectation.

I’ll take a call from Ingrid Leary, but I have to say that, on this part, we just need to be focusing on changes—any changes—now.

10:05

Thanks, Madam Chair. I note that, in the definitions section, there doesn’t seem to be a definition of “seclusion”.

In the Wakari Hospital incident, one of the things that has emerged is that people suffered serious seclusion that wasn’t recorded as seclusion, because of the circumstance of the building. I’m wondering if the Minister could respond to how we’re going to be able to capture those events under the bill, and whether he would entertain a definition of seclusion, to be able to make that something that institutions couldn’t wiggle out of because they don’t have a formal seclusion-type room.

I do think, Madam Chair, we’ve only just started the questioning on electroconvulsive therapy (ECT). ECT is highly controversial, and I think it’s important for the public to know that we looked at this as a select committee really carefully and we’re pretty happy about—

I did hear questioning about ECT in last night’s session, so this is specifically around any amendments or adjustments.

Sure. We’re pretty happy about where we’ve landed with safeguards, but we still think there could be additional safeguards. They’re only minor. One of them would be for the consent to be called “fully informed consent” and to take into account future side effects of ECT. The other one was something to ensure the independence of two psychiatrists, because sometimes psychiatrists can work together, or may not—they simply rubberstamp other people’s notes. There are amendments on the Table to that effect. Those are my questions on ECT. I do have more questions on this part, Madam Chair.

10:06

Thank you, Madam Chair. Look, the continual reference to Wakari—patients at Wakari are actually under different legislation, the Intellectual Disability (Compulsory Care and Rehabilitation) Act, so that is clearly out of scope. I have been advised that the “seclusion” definition is in secondary legislation, and that allows for the adjustment with new practices as well.

I would like to say, in response to the question, that I do welcome the changes at select committee. I think, when you look at Part 1, the principles of the Act are ensuring that we do have safeguards. I welcome now the new safeguards, especially around the second opinions, also around the reporting as well—if you look at seclusion specifically, around having identified seclusion rooms as well. My view is that this bill gives more confidence around the existing practice of seclusion.

Within electroconvulsive therapy (ECT), of course, there was a range of views at the select committee. I respect that. We heard from the Hon Ayesha Verrall in the second reading about her concern and whether we should prohibit the use of ECT, but, actually, through the select committee process, the validation and the clinical evidence—but, of course, it is around the safeguards, and I welcome the changes made here today to ensure that we do have those better safeguards.

10:08

Going to clause 70, just a quick question: I know that the Mental Health Bill has been through the New Zealand Bill of Rights Act process, but has he specifically considered section 7 of the Human Rights Act, the requirement of the Attorney-General to bring into the House of Representatives any bill that could be deemed inconsistent or any provision, in relation to community care orders? In other words, what specific advice has he had on that?

I turn now to clause 80. This is around what we heard could be a change in the threshold regarding the determinations that are made. In the previous bill, the practitioners were required to make determinations, and that language is not used in the current bill. There were submissions to suggest that that reduces the level of protection for tāngata whaiora. We know that “reasonable grounds to believe” has been removed from a lot of the provisions, which is really good, but we still don’t have a determination one. We have words like “in their opinion” rather than a “determination”, which would seem to have a higher clinical threshold. Can he explain if he is happy with that language and why he’s chosen that language rather than determinations?

The Minister’s just looking for something. Ingrid Leary, did you have another—Ingrid Leary, the Minister’s just looking up some answers. Did you have further questions?

I’ll cede to Lawrence Xu-Nan at this point.

10:10

Thank you, Madam Chair. I indicated I’m happy to move on to Subpart 2. I actually only have one question for Subpart 2, on compulsory care assessment. I think Schedule 1A is actually very clear in terms of the process. My only question is around clause 57(1)(a) specifically. This is page 48, line 15. Again, this is when we’re looking at the first assessment. I want to check with the Minister—again, you get the Director of Area Mental Health Services determining the mental health practitioner. Can I just check if that practitioner—I’m just checking, unless I missed it—is able to conduct that first assessment using audiovisual links? For example, I’m, again, thinking about distribution and distance to travel, etc., for rural and regional areas where it might potentially be quite hard to have access to a mental health practitioner to determine that first assessment. I want to the check with the Minister if there’s any consideration of how that could work.

I now want to move on to clause 73. This is in Subpart 3, and this is page 56. The reason I want to speak to this clause—and my question and my next question—is to do with the Minister’s Amendment Paper 648 on clause 73 and clause 81. I want to check with the Minister: in clause 73(3)(c), why has the term “proposed” been removed in the Minister’s amendment? Is it just simply to do with the fact—I’m just going to check that there is no explanatory note on this particular bit. Can I just check: is it because the care plan is already in effect, therefore it is not a proposed one, and that’s why that word was removed?

My final question for this contribution is on clause 81, and this is to do with the Minister’s amendment as well. We’re looking at, possibly, the top of page 60, right after line 7, and that’s to do with if the responsible practitioner considers that a person under compulsory care meets the compulsory care criteria. It’s about the record that’s being sent. The Minister’s amendment added this new Director of Area Mental Health Services. I just want to check if there is anyone else who should also be sent a copy, assuming that this is quite a last-minute thing. For example, a person I could think of is—I just mentioned before in terms of the assessment that there is a requirement for the mental health practitioner to conduct an assessment, but I don’t know if the mental health practitioner needs to be also sent a report or if that is encapsulated under clause 81(3)(c) as the primary health care provider. Any clarifications on the Minister’s amendment for clauses 73 and 81 would be appreciated.

10:13

There’s a few questions I’ll gather up there around the question of the section 7. The bill was vetted for consistency with the New Zealand Bill of Rights Act and considered, in its entirety, to be consistent.

There was a question from Ingrid Leary about the amendment in her name—relating to clause 80, if I understand that to be correct—about questioning the reference to “in their opinion”. I’ve been advised that the current reference “in their opinion” makes it clear that the status review decision requires careful assessment to form a reasoned opinion, not just an issued decision.

The questions from Lawrence Xu-Nan, in only, respectfully, a way Lawrence Xu-Nan can, I think some of them by the end of it answered his own questions around clarification. If I don’t—

OK. That’s helpful.

Ha, ha! If I don’t answer your questions, then do let me know.

There was one around the practitioner being able to conduct first assessment using audiovisual links (AVL) as well. Clause 215 sets it out when AVL can be used.

There was the question around who would be notified at certain points of the care planning process. Of course, there is the principle of confidentiality. The person under care can nominate people as well, and we expect when this bill is operationalised, we do have comprehensive care planning processes as well.

I was about to take a call from Ingrid Leary, so I’ll come back.

10:15

Thank you. Moving to clause 85, this is the subsection that talks about the expiry and extension of mental health care orders and, again, involves people making decisions that potentially have an impact on the human rights of those who they’re deciding about. Some of these do seem to be broader in scope than the current Act. Therefore, it’s important to ask questions about them.

The first one is the first extension, which is six months. What additional safeguards, if any, are provided before a person’s compulsory care order is extended to the first six months, and how will the responsible practitioner make the determination about whether they should be under a compulsory care order or whether they’d be better supported through voluntary care? What weight must be given to evidence that the person has regained decision-making capacity or is engaging voluntarily? Does he expect the first extension to be the exception rather than the norm—it would be good to have that on the record—but also, if so, how will that expectation be monitored? There doesn’t seem to be anything in the bill around that, so it would be good to hear what kind of operational monitoring might be occurring.

There’s also, in clause 86, second and subsequent extensions, where, after the first extension, the court can grant an order for up to 12 months, and the Government has increased the maximum duration of subsequent extensions to that level. The committee changed the wording to say for a period of “up to” 12 months, but it does create questions, because it means there’s a discretion. What factors does he expect the court to consider when deciding whether an extension should be, say, three months, six months, or the full 12 months? Wouldn’t it be important, if there is that discretion, which is implicit, to have some safeguarding wording around that?

There are also questions about whether an annual judicial review is sufficient for monitoring those extensions. That means that once a year, there will be some kind of report done, but somebody could potentially just have the order extended over and over again without any kind of transparency or ability in the system to be able to see it as a milestone or a gate to reassess, so what’s in place in the bill to do that? Is there anything in clause 86 that requires the court to grant the shortest extension reasonably necessary, and, if so, can he point to that, please? How will he ensure that there will be consistency across different courts, because at the moment the legislation is silent on that?

I guess we’re really wanting to see some direction from the Minister, given that there isn’t the safeguarding, necessarily, in the bill, of his expectations of how these two clauses, 85 and 86, will, in practice, be delivered.

10:19

Thank you. There were the statements made around decision-making capacity and the criteria for being placed under compulsory care. I’m confident they are explicit in the bill. The more substantive question at the end there around the 12 months with the care order—I would just point to the key principle of the legislation, the least restrictive practice, as well as the additional safeguards. What gives me great confidence and also why this meets 10 of the abuse in care recommendations is that there may be a 12-month order, but, of course, because of the requirement for a review every three months, if a person is deemed not to be required to be under the Act, then they won’t remain under the Act.

Madam Chair—Madam Chair.

Hūhana Lyndon. I said I’d take a call from Hūhana Lyndon.

10:20

Kia aroha mai [sorry], Madam Chair—we skipped ahead, and I wanted to take us back to page 46 for a quick question with the Minister in regards to clause 53, in the “Release from compulsory care”. It notes that at any time when a responsible practitioner considers that a patient under compulsory care does not meet the criteria for compulsory care anymore, the person must be released immediately—ka pai. But then when there’s a disagreement that might occur, the case gets referred on to the Mental Health Review Tribunal. My question is, because we’ve heard data around both youth and overall adult, those who are retained within compulsory care, the monitoring function and the retention of data and reporting of how many contests or challenges around the review of release of care—is that recorded? Will it be made public, as a part of the reporting, to show the progress in the way that we are being robust in considering our retention of a person and release of a person from care?

10:21

Thank you, Madam Chair. I think it’s actually a very important question about the Mental Health Review Tribunal. As I sketched out to the previous member’s question, around the three-monthly review and being discharged from the Act, where there is a disagreement, I suppose, from the person under compulsory care and the responsible practitioner, it does go to the review. So I’m happy to commit to that capturing of the data and publishing it. If that’s not happening already, then that will happen.

10:22

I move, That debate on this question now close.

Members, Mr Speaker has given permission for Tom Rutherford to help out in the Chair today, and so at this stage, while I move to go and do something else, I am going to ask Tom Rutherford to take the voting on this part. Thank you.

Alrighty. Thank you, members. The question is that the Minister’s amendments to Part 3 set out on Amendment Paper 648 be agreed to.

The question is that Ingrid Leary’s tabled amendment replacing clause 41(2) be agreed to.

The question is that Ingrid Leary’s tabled amendment inserting new clause 48A be agreed to.

The question is that Ingrid Leary’s tabled amendment to clause 49 inserting new subclauses (1B) to (1D) be agreed to.

The question is that Kahurangi Carter’s amendment to Part 3 set out on Amendment Paper 646 be agreed to.

Point of order. I just thought I could draw your attention to photos being taken in the gallery, if you had any discretion to be able to do something about that.

I’m just taking some advice.

Permission is needed to take photos, so if permission hasn’t been granted then I ask the member to refrain. But thank you for raising that and bringing it to my attention.

Carrying on: Ingrid Leary’s tabled amendment inserting clause 49A is out of order as being of uncertain legislative effect.

The question is that Ingrid Leary’s tabled amendment to clause 49 inserting subclauses (1B) to (1D) be agreed to.

Ingrid Leary’s tabled amendment replacing clause 80(8) is out of order as not offering a serious alternative form of words.

10:29

Thank you, Mr Chair. Look, I do want to sort of slightly get ahead of the questions in this part. The reason I say that is, actually, when you look at this part, it is one of the most consistent parts with the current Act—some of the least changes—and also, I would point to members that the new principles of the bill we are debating will now be brought into forensic care for the first time. I’m sure we’ll agree, when we think about our prisoners who experience psychiatric issues that need to be transferred out of corrections facilities into forensic Health New Zealand facilities, that we want to ensure that they receive the same level of care that people going in under the comprehensive Act.

10:30

Thank you, Mr Chair. I do have a few questions for Part 4, and it’s good to hear from the Minister for Mental Health that it’s the most consistent, which in some ways is also the more concerning because of the development in terms of our criminal and justice system. This part, in some ways, has more to do with justice as opposed to purely a mental health portfolio element.

Mr Chair.

Is this a point of order?

10:31

Well, I’d just like to respond to that because, before we go off, it doesn’t have anything to do with justice. When a prisoner, if we use this as an example, is deemed needing psychiatric care, they come into a Health New Zealand forensic service, which is covered by this legislation. They’re solely covered by this legislation. I just want to reiterate that this part is the least change from the current Act and has no significant changes. I accept that there is an important discussion, maybe in a general debate, about how we better manage our prisoners in New Zealand, but I just wanted to point out the substantive of the clauses.

10:32

Thank you, Mr Chair. I think the Minister for Mental Health has jumped ahead in anticipation of what my question is going to be. My question starts with clause 101, in terms of notice of admission. The reason I ask this is actually to do with the fact that we have just had a debate on the declaration of inconsistency when it comes to public protection orders and extended supervision orders. This particular section, I think, in reference to the Criminal Procedure (Mentally Impaired Persons) Act, was a specific component of the consideration when we’re looking at that declaration of inconsistency. I want to check with the Minister, then: when we are looking at this section in particular, has the Minister received any advice on the potential contradiction with section 26(2), I believe, of the New Zealand Bill of Rights Act around double jeopardy? That is my first question.

My second question is to do with clause 103, “Collection of biometric information”. Now, the reason I’m asking questions around this is what the Minister said, that this is kind of mostly consistent—our Privacy Act has also changed quite substantially over the last couple of decades compared to 1992. I do want to check, when it comes to collection of biometric information, for example, how is that being stored and how is that being used? I do have some supplementary questions later on biometric information, but I want to check those two questions to set the premise around.

10:34

Thank you, Mr Chair. Just noting that I endorse what Lawrence Xu-Nan has said. The reason that we need to scrutinise this part of the bill is because it is indeed the most similar to the current law, which we know is not fit for purpose, so we will have questions about that. I’m not sure it’s appropriate. I hope the Minister for Mental Health is not going to stand up and require me to stand down in the middle of my contribution.

I want to go to clause 112(4A), which is the new provision that was advocated for by Labour members at the Health Committee, which is, where a person under compulsory care is to be transported, they can request from the Director of Area Mental Health for him or her to permit a support person for the duration of the journey. It can be a retraumatising event for a young person, and paragraph (b) says, “the request may not be unreasonably denied”. Further in the provision ahead of that, there are planning and delivery elements about how that is to happen using Government transport.

I just want to ask the Minister, would it be, in his opinion, an unreasonable denial of that permission if the young person was not able to make the request in a timely way? I’m thinking here of situations where somebody might be told on the day that they’re due to move that they need to be transferred to another facility, and they simply don’t have time either to make the request or for that response to be received. Would that be considered an unreasonable denial of that new right for that young person?

10:36

Thank you, Mr Chair. There’s a question by the member Lawrence Xu-Nan about the bill. It was independently vetted against the New Zealand Bill of Rights Act and found to be consistent.

Thank you, Mr Chair, and I’m just signalling to the Chair that I’m waiting for the questions around biometric information and how they are going to be used and stored against the new privacy principles. Again, I’m not seeing, in this particular section, that privacy is even mentioned, which is deeply concerning.

I think the second question is, for example, with that—and again, this is something we’re seeing quite recently in some of the justice-related portfolios, and also immigration-related materials—in and around the use of biometric information. Can I check, is this being stored within the agency and are the agencies compelled to share such information? For example, because we’ve seen it with immigration, are they compelled to share that information with Five Eyes partners?

10:37

Thank you, and thank you, Minister for Mental Health. I just want to reiterate a couple of quick points, and that is, when we have debated this bill in second reading before entering into this committee of the whole House stage, everybody noted that the current legislation is simply not fit for purpose. I also want to lend my voice to the fact that when we get to Part 4, which is what we’re on now—and we can see and then have that confirmed via the Minister’s opening remarks that this is, essentially, unchanged—it does raise legitimate questions that should be ventilated in this process now as to why the Minister feels as if, throughout policy development, throughout all other aspects of making changes to this legislation, the forensic part of the operation of the Mental Health Act was deemed to be pretty much fit for purpose, just needs a little bit of an update of language. Certainly from a prison perspective—and I appreciate the difference between this Act and the Corrections Act, but it is clear that there are many things that are not working in the health component of people that find themselves incarcerated into the corrections environment. I would like to hear—and this is a perfect opportunity for the Minister to be able to just walk us through, talk us through—why he feels that there wasn’t a need in this Part 4 to make any substantive changes that could have improved the way that this bill acts for real-life people in those environments.

10:39

Thank you, Mr Chair. Well, that’s because, as we’ve reaffirmed multiple times during this debate, the bill had full public consultation before it was brought into the House. I also took some comfort from the Health Committee in its recommendations or, potentially, lack of recommendations in this part. There was a question around privacy of Five Eyes concerns by the member Lawrence Xu-Nan. The answer there is no. The issues are here. The Privacy Act continues to apply for storage and sharing.

There was a question around collection of information, and the biometric information is collected in accordance with the regulations as well.

10:40

The Minister for Mental Health has mentioned full consultation. Can he confirm, then, that patients held under forensic legislation or in prison mental health settings were consulted as part of the drafting of this bill?

I can only reaffirm, and that was the advice, because, of course, as we know, the full public consultation happened under that member’s last Government.

Thank you, Mr Chair, and thank you for that response, Minister, around the information privacy principles—IPP. Just to check, one of the directives that the Privacy Commissioner has submitted around that is to do with the fact that our IPP actually, in some ways, doesn’t cover the sharing of information, both individually but in also in terms of collective or bulk. I do wonder if the Minister for Mental Health could just confirm with me not just simply that this is something that has been checked through but that the Minister or officials have had a conversation with the Privacy Commissioner about this particular area. I think that would relieve a lot of our concerns as well.

I do want to move on to clause 106, in terms of the detained person in need of care. This goes back to one of my earlier questions around public protection orders (PPOs) and extended supervision orders. In here, what you’re looking at is specifically a person who is detained in prison or a residence established under the Public Protection Orders Act. I just want to check with the Minister on what then would be the process of transferring someone from PPO to person under forensic compulsory care status, and if the Minister wouldn’t mind saying just how many of those are currently in the system.

10:42

Yeah, just to tie up the questioning around that, the Privacy Commissioner was consulted around the policy and made a submission.

10:43

I move, That debate on this question now close.

Mr Chair, I just want to seek clarity from you. We’ve got some outstanding questions. If the Minister for Mental Health wants, we are happy to move on, but then if the Minister, in future parts, would be able to still respond to some of the current questions.

I’m happy with that.

You’re happy with that?

Yes.

Thank you, and I appreciate the Minister for Mental Health’s previous answers; I just wanted to further dig into a little bit of context. The Minister said that the consultation had happened under the previous Labour Government, and that’s all very well and good, and obviously we’re very well aware that a lot of this work was initiated and instigated under a previous Government.

The Minister has had the opportunity to add his two cents’ worth, so to speak, for lack of a better term, but the context is quite different now to what it was then in regards to forensic mental health, because the prison population has absolutely risen. There are clearly a lot more concerns about the forensic capacity within the prison system being able to cope with what is a booming prison population and all the requisite problems that that forces on other types of less forensic but still mental health responses.

Has the Minister engaged in any further policy development or any kind of consideration of a very, very different environment to what it was three years ago, and how can he assure us that this even touches the sides in terms of an appropriate forensic mental health component of this bill?

10:44

As has been well traversed, this “repeal and replace”, which is a once-in-a-generation improvement of the Mental Health Act will equally improve care for those forensic patients that come outside the wire from Corrections into a forensic Health New Zealand setting.

The question around, I suppose, capacity and ensuring we have the right number of beds: I would point the member to not only Budget 2025—$51 million specifically for more forensic mental health beds—and then Budget 2026 with $36 million specifically for more forensic mental health beds.

10:46

Mr Chair, thank you. I’m looking at the first clause in Part 5, clause 136, which is “Tribunal reviews of persons subject to compulsory care”. This records where a Mental Health Review Tribunal can review the condition of any person under compulsory care.

We’ve had a bit of discussion in this House about whether compulsory care is appropriate in many settings, given that there’s no evidence of its therapeutic benefit. My question is on clause 136(4). It says that “If it appears that for any reason a status review … has not taken place, a Mental Health Review Tribunal may review the person’s condition,” etc. Given that this is a bill about safeguarding, wouldn’t it be better to have the word “must” there? Under this bill, people are entitled to those reviews of their compulsory care. What are the circumstances in which it would be ethical to not actually require that to occur, given all the direction of travel in this bill about the safeguarding of tangata whaiora?

A similar question on clause 140, the “Application to revoke appointment of nominated person”. We’ve got a perceived safeguard there where, if “it considers that (a) the appointment is not in the best interests of the person under compulsory care; or (b) [they’re] unwilling to … participate”, or the appointment could have been obtained by some weird reason, a Mental Health Review Tribunal may basically revoke the appointment of that person. Now, again, if we’re really interested in the human rights of tangata whaiora, wouldn’t it be better just to change that word to “must”? The fact that there are reasonable grounds, that it’s not in the best interests, and that they have reason to believe that—they consider that—which means they have decided and landed on that view, means it would be untenable, from a human rights perspective, to then enable the Mental Health Review Tribunal the ability to overlook that. Tangata whaiora are sick of being overlooked. These are the very operational details of this bill that would make sure that wouldn’t happen.

10:49

Thank you, Mr Chair. I do have a couple of questions for this section as well, noting that while it’s a smaller section, this is sort of one of the accountability measures and mechanisms that we have in this entire bill.

I want to start by looking at clause 136(3). This is on page 93. I understand the clause in general when you apply to a tribunal, but I think this is quite an interesting clause where “a Mental Health Review Tribunal may at any time, of its own motion, review the condition of any person under compulsory care.” We’ve only seen a few of those instances in a tribunal or in a court setting. I do want to check with the Minister, what then would the criteria be or the circumstances that would encourage the tribunal to review of its own accord? That being my first question.

My follow-up question is, usually when we see tribunals or courts, the tribunal itself cannot undertake any additional research. One of the few examples where we have the ability for tribunals to also undertake its own research is the Waitangi Tribunal. Can I check with the Minister: if the Mental Health Review Tribunal is able to, in its own motion, review the conditions, it also implies that the Mental Health Review Tribunal can also undertake its own findings rather than just simply based on the submissions or the applications that they’re hearing. So those are my two questions to start with.

I do believe that if the Minister is waiting to get some response, that’s totally fair, but we would be keen to at least get one engagement from the Minister for this part because we do have a couple of questions on this.

I want to check with the Minister, when we’re looking at clause 139(5), this is page 98, at the conclusion of the review, the Mental Health Review Tribunal must record its findings stating the following—but what I want to check, and what is not clear, as far as I can see at this stage, is whether the conclusion of the review and the findings by the tribunal are binding or is that just simply a recommendation? If it’s binding, that’s clear; if it’s simply a recommendation, who then will take that recommendation further as a result of that?

10:51

Thank you very much, Mr Chair. Just in response to those questions from Lawrence Xu-Nan: my expectation that the tribunal would use its authority to ensure that it does have all the relevant information about the review. If you’re asking the first question about their ability to seek and undertake their own activity to require that information, that would be my expectation. To the latter: yes, because, ultimately, we want the tribunal to make a decision.

10:52

I’d like to look at clause 164, “Appointment of Mental Health Review Tribunals”. We did have an amendment that landed on the Table at the eleventh hour, which has made a change to this, that says after clause 164(6), there should be an insertion about “nothing in this section prevents the appointment of a member of the Forensic Mental Health Review Tribunal to the Mental Health Review Tribunal.” In clause 164, we have a list of up to four appointees that can be made by the Minister; they include legal experts, health practitioners, people with lived experience and so on. Was the addition of this an afterthought where it is common practice for a forensic mental health review person to be on there and we’d just forgotten to put it into the bill? Or is there another reason why we’re having this late-stage amendment? It could conceivably raise issues of conflicts of interest in so far as the forensic mental health side of things being around forensic mental health versus mental health and not having the forensic elements. I’m wanting to understand, is it an oversight that’s already in common practice or are we trying to extend something here so that there is greater synergy but perhaps less transparency depending on how it’s safeguarded in the bill?

10:54

Thank you, Mr Chair. I think it’s a valid question. Just to assure the members, it’s a small technical change that provides clarification.

Thank you, Mr Chair. I think this is a particular section that has quite a few amendments from the Minister, so I do want to go through some of them, and my colleague Ingrid Leary has gone through the first one around clause 164.

I want to now move on to clauses 164 and 174. I, actually, then want to move on to clause 175—this is on page 113. Just to signal to you, Mr Chair, that we may have other questions, but we do want to address the Minister’s Amendment Paper 648 first. In clause 175, what we’re seeing is an insertion of two additional parts. I do want to check with the Minister—I see that in the explanatory note that he just says it provides us with more functions and powers, but he doesn’t actually address the fact of why the Minister considered that these are important to include last minute. So if the Minister wouldn’t mind just elucidating the committee on how this particular bit came about. I may have further questions based on the Minister’s response.

10:56

If the Minister could just clarify, since he said it was a clarification: is it currently practice for that forensic member to be able to be on the tribunal under the current Act, and does that currently happen in practice?

Thank you, Mr Chair. I will continue to look at some of the other sections, but I want to, now, first go back to an earlier section. This is something that is of interest and something we actually discussed yesterday in a separate bill, which is around fees and travel allowance—this is clause 172, page 112. The reason I want to look at this part is I want to check, as this came up in the Regulatory Systems (Tribunals) Amendment Bill, if the Minister wouldn’t mind just clarifying, the members on the Mental Health Review Tribunal, are they employees or are they contractors? Because that did come up yesterday, in terms of referees and adjudicators, and there is a level of consistency that’s expected that they’re all now going to be contractors and not employees. So if the Minister wouldn’t mind clarifying that, that would be greatly appreciated.

I do want to check on a separate section of this bill and that’s more to do with the appointment of the Mental Health Review Tribunal. Can I just check—and, again, this is something that came up previously. I’m looking at clause 168(2), which is that the “deputy of each member who is a lawyer must be a lawyer, and the deputy—”

Sorry, are you looking at clause 160 now?

168.

168. All right.

Page 111. I do apologise. I’m jumping just a little bit, Mr Chair, because I want to check the Minister’s amendment first before going back to earlier sections.

One of the considerations I had before is the capacity of the pool of people who are able to fulfil a particular role. That came up yesterday, I believe, as a part of the occupational regulation amendment bill. Can I just check, with the criteria that has been listed in clause 168 regarding deputies of members and also in terms of the criteria for the appointment of members in general, whether the Minister is confident that they are able to have the people who are able to fulfil all of those roles and particularly the role of—I’m assuming that the tribunal will have a lead or a chair of some sort.

10:59

The answer is yes, I am confident.

The question around the types of role being advised: independent statutory officers.

The response to the member Ingrid Leary around “Is this current practice?”: as she will know, the Forensic Patient Review Tribunal is new, so no current practice.

Thank you. I’d like to turn to clause 181, around police assistance. This is a clause that lays out the powers that police have when they are attending an event and need to use powers of restraint, I guess. It’s really a policy question, Minister—a policy and resourcing question—about how you see this working given the direction of travel towards mental health response teams, which we applaud, and how this is going to work in effect, because we are hearing lots of reports of police not attending situations and mental health workers having to put themselves in harm’s way, sometimes, to take people to hospital. They are clear they don’t want to have additional powers of restraint—that is not their core job. Their job is to support tangata whaiora, and yet there are often powers of restraint needed. I can see these laid out in clause 181. How does he see this working where police are infrequently attending these events?

We know that they are not necessarily declining to attend; often they’re just saying to mental health workers or families, “Call us back in 10 minutes.”, “Call us back in half an hour.”, “Let us know how you’re going.”, and workers are telling us that in the end they’re just having to unilaterally make those decisions and try to get people into vehicles—sometimes for four- or five-hour drives to hospitals in rural areas like the lower South Island. It’s of great concern to mental health workers and I’m wondering if the provision could somehow be futureproofed, or does it need to have a reference to mental health response teams as a way of making sure we’re not back here doing something with an omnibus bill.

11:01

Yeah, look, I welcome that question by the member; it’s a very important topic. I suppose it starts to stray into the question of how we operationalise the bill. Something I’ve been very clear about with the police mental health change programme is that between Health New Zealand and NZ Police, they have new operating procedures. My expectation with this legislation is that it would inform those new operating procedures, because until there is surety that any changes between police and health can happen safely with new operating procedures, then they are not green-lit.

11:02

Thank you, Mr Chair. I also have questions around clause 181 in terms of police assistance. I’m just noticing that this section does make a lot of references to other parts, and so I was hoping to wade into this section before I discuss this. One of the areas I’m not seeing, in terms of police assistance, is actually around clause 89. I understand that there are a lot of other clauses here, and just to refresh the memory of the Chair and also the Minister for Mental Health, clause 89 is around—

Are you still on 181?

I am on 181, but it refers to how then—are there any expectations, police assistance, when it comes to leave for a person subject to the hospital care? A responsible practitioner “may grant the patient person under compulsory care leave of absence from the hospital for a period specified”. But what I’m not seeing in both that clause but also in this clause is the fact that what happens when that person who is leaving will require police assistance. Unless I’ve got it wrong, my understanding is it’s about a person who has leave from compulsory care going into the community, potentially for weddings, funerals, tangi, etc., with the care plan that everything that’s all considered. But also in those kinds of circumstance, in neither of these two clauses do I see a cross-referencing on awareness or an awareness to the police in case something does happen. So I just want to check with the Minister on whether that is a baseline expectation already—that the police may be assisting in the event of a leave—or whether that is actually not required as part of the care plan.

11:04

Yeah, look, a good question. I suppose where it gets slightly conflated when we talk more broadly about operations between police and health, that will be in response to those under the compulsory care Act, and, of course, those in mental distress who are not under the Act as well, but I think it points to more an operational issue. As you know with New Zealand Police and also health, the expectation when there may be a risk to the individual or others and how health work with police.

I move, That debate on this question now close.

Just a final question on that—and thank you to the Minister for Mental Health for his answers—the wording of clause 181 is really interesting because it’s written passively around the words that somebody “is believed to be”. Then there’s the question of whether they should be under the Act. Currently one of the problems that we have is that it feels to mental health workers that the final decision about whether that person needs restraint or not is being made by police rather than by a clinician.

I’m guessing that the wording is deliberately silent on that so that those protocols can be established, but I wonder if the Minister could just point to exactly where the determination will be made about in whose belief those decisions will be made. Because what we’re seeing is tangata whaiora falling through the cracks, family falling through the cracks, because the opinions of mental health workers are seeming, under the protocol, sometimes to fall secondary to the non-clinical decisions being made by police. Whose belief and on which protocol can that be put very clearly so that there is certainty for families and for tangata whaiora and mental health workers about who makes that decision?

11:06

Yeah, important question and that’s why it’s important in this bill that there is clear criteria and principles under compulsory care and also the process of not only first but second assessment.

I move, That debate on this question now close.

The question is that the Minister’s amendments to Part 6 set out on Amendment Paper 648 be agreed to.

11:08

I’d like to go straight to the Amendment Paper that was dropped onto us very late in the piece, Amendment Paper 648. This does go to the question of police powers, which are important when it comes to human rights, and we have not been able to see this at the Health Committee. I notice that clause 182, “Police powers in relation to person appearing to meet compulsory care criteria in [a] public place”, has been changed and there’s an addition in there after clause 182, after line 35, to say, proposed new subclause (7), “However, the constable must immediately release the person when the constable no longer has reasonable grounds to suspect that the person may meet the compulsory care criteria.” Then if they do that under proposed new subclause (8), they must record the reasons for their suspicion of that and they must record their reasons for releasing them.

This goes a little bit to the questions we had under the previous section, under whose belief is involved with persons making decisions about putting somebody under the Act. Whereas previously it appeared to be around police and health protocols, it’s very clearly spelt out in this amendment that this is on the constable.

The question I had for Part 7 is whether the constable is the right person, and whether there needs to be any conferring or consultation with a health practitioner or others involved in that person. I know that it’s in a public place, but it does seem to be quite a burden that’s put on a constable who is not a clinical person. My worry isn’t that the constable won’t release the person, because that could be exactly the right thing to do. My worry is that we’re starting to conflate clinical decisions that should be made by clinicians on to police, who are in charge of restraint and not clinical decisions.

There’s also two different test levels in here, where it says that the constable “no longer has reasonable grounds”. So we’ve got the reasonable grounds test, which is a well-established legal test, but then we also have: “record the reasons for their suspicion that the person may meet the compulsory care criteria”. There are two different thresholds there, and I wonder if the Minister could please explain why that language is different in the proposed new subclauses rather than being consistent. Are they two different thresholds?

11:10

I’d just point the member to the principles of the bill. First, less restrictive practice; and, also, bringing in the new decision-making capacity—the acceptance that decision making can fluctuate and then applying less restrictive practice. This part of the bill points that out in the context of police.

11:11

The second part, under proposed new subclause (8), where they have reasons for suspicion, is a lower threshold than having the reasonable grounds in Part 7—it’s inconsistent. So is the Minister saying—

Can you point to that clause? Sorry.

This is in Amendment Paper 648, clause 182. Is it a lower threshold for suspecting that the person may meet the compulsory criteria? Then, is it a higher threshold being required in order for them to be released; and, if so, how does that accord with the principles of the bill?

11:12

No, but I would also expect police, where appropriate, to seek advice from DAOs, or duly authorised officers, to help inform their decisions.

Thank you, Mr Chair. I, too, want to speak to the Minister’s amendments set out on Amendment Paper 648, starting with clause 182. I’m just trying to get my head around the interactions between the Minister’s amendment and the existing process.

Essentially, when we are looking at the proposed new clause, proposed new clause 182(7) in the Minister’s Amendment Paper states that the constable who no longer has reasonable grounds must immediately release the person. That’s understandable; that’s fair. But we also see the same wording in clause 182(3). My understanding of the process is that a constable finds the person; detains the person; then the constable, in subclause (6), may detain that person for six hours, or however long it takes to get an assessment under subclause (2); then the medical health practitioner examines the person; and then the medical health practitioner determines that, if the person does not meet the criteria, the person must be released under subclause (3); and then proposed new subclause (7) is that the person must be released. Can I just check: why does it need to mention that the person is released twice? Once is by the medical health practitioner—but then that’s also in the passive voice—and the other one is by the constable. I’m just trying to get a sense of why we need to do that twice. What is missing in the interpretation between the two?

My final question for clause 182 is around subclause (6), which is: why has six hours been the default selected for this part? Is it based on existing data of the maximum time it would take for the actions to be carried out—i.e., get access to some consultation, or etc., from either an authorised person or a mental health practitioner?

11:14

Thank you, Mr Chair, and I say respectfully to that member that I do enjoy, sometimes, his questioning when he poses the question and then goes through and actually follows through by answering the question, as well. I’m not saying that flippantly; I think it actually helps the debate of the committee, and it’s better for clarification. I think he’s quite rightly identified the two different parts, because one refers to police and one refers specifically to the practitioner.

11:15

Just for clarity: that would only capture a situation where a mental health practitioner is authorised under the bill to restrain or hold on to somebody? We’re not now conferring those powers of restraint by somehow having to release points?

Yes, I can confirm that.

Thank you. I have a question on clause 184, which is the “Power to sedate person when sedation urgently required”. I just wonder if it would be helpful to have an amendment—I haven’t drafted it up, but the wording would be very simple—where, under subclause (5), we could add the words “and police may not unreasonably withhold that assistance”. Now, we’ve seen that wording previously when a young person has asked the Director-General of Health for assistance to be transported and they want somebody to come with them, and the director-general cannot unreasonably withhold that. The addition of these words would basically resolve the problem that we’re seeing at the moment, where mental health practitioners are turning up to events that can endanger themselves or—

Just checking that you’re on clause 184?

Clause 184, subclause (5).

Clause 184, subclause (5). All right.

—where mental health practitioners can turn up to events and they’ve been called by families. It’s high anxiety for everybody. They are aware they need to administer a sedative drug to be able to transport somebody, probably, to a secure unit. They’ve called police, and time and time again police are saying, “We’re not at the end of the event yet; can you keep talking to them? Can you keep trying to get them to come?” As I’ve said in my last contribution, it often leaves them with the distressing decision to travel unaccompanied in a potentially volatile or dangerous situation without police assistance.

Changing these words under subclause (5), just to have “ police may not unreasonably withhold that assistance”, means that there’s an expectation that police will turn up where a clinician has decided that a sedative drug is needed—but, also, it gives police the out that it’s not unreasonably withheld, so if there was something else that was occupying their time and they were all tied up, they could actually use that and there should probably be a recording of that decision. This would be incredibly helpful because this status that we’re currently hearing from the front line of police not making a decision one way or other to turn up—this would clearly require them to do so where they can, or to be explicit where they can’t. That would give mental health workers more choices in situations where things can escalate really rapidly and where, currently, they’re feeling very vulnerable.

11:18

I’d just like to thank that member, Ingrid Leary, for that proposal of an amendment. It’s one that I would not support. I’d reinforce, within that clause and subclause, that by having the requirement it would be the expectation that that would then be operationalised between Police and Health New Zealand in their new joint working procedure.

Before I take the next call, just to note that this is about penalties and offences. There’s a considerable amount of weight in this particular part, so having considered questions is a good thing for the process.

Thank you, Mr Chair. I’ll turn now to the offences under clause 190, which is about neglect or ill treatment of people. Again, recent events would say that this is something that may seem archaic, and yet it is all too often happening for us, not just in the abuse in care but very recent events, and we don’t now know how systemic this is around the country. So my question for clauses 190 to 199 is: when we’re talking about intentionality, is recklessness captured? What is the threshold? If it isn’t captured, should it be captured so that we can make sure we are really safeguarding our most vulnerable people?

11:19

Thank you, Mr Chair. I want to first seek clarification from you. A few days ago, we heard the Chairperson’s guidance that the expectation is for us to have fulsome debates. As we’re moving through this bill, we do look at the operational elements.

Is this a point of order?

Yes, sorry. In that case, I will start with the point of order. Just if the Chair wouldn’t mind providing clarification—I do find it disruptive and concerning when the Government side is trying to shut down a debate for a very important part on offences. We haven’t repeated questions, we’re speaking to the Minister’s amendments, and yet I just feel like it is actually inappropriate, based on the Chairperson’s guidance, and I seek your clarification.

Well, we are dealing with penalties and offences, which does have a considerable amount of weight to it. We are open to considered questions, because of the importance of this particular part as well, and I’d like members to be aware of that. But, also, it is possible to keep the question short as well so we can move through methodically as well.

Thank you, Mr Chair; I appreciate that.

My first question is on clause 184(2). This is the only time I see in this whole section where “paramedic” is mentioned. However, we don’t see “paramedic” being mentioned in any other subsequent clauses, including the ability for a paramedic to call for police assistance, under subclause (4). Can I check with the Minister for Mental Health—my first question is: does this mean that paramedics do not have the ability to do that, or is the ability for a paramedic to call for police assistance covered under other legislation?

My second question is around the Minister’s amendment to clause 187, in Amendment Paper 648, “Powers of nurse if urgent assessment required”. Again, this is to do with the fact that nurses must immediately release; that’s perfectly clear. But what we don’t see is, for example, similar insertions in clause 185 or clause 186. Can I assume that the Minister’s insertion in clause 182—that medical examiners need to immediately release and the police need to immediately release—covers subsequent sections.

I note that the Minister said that I sometimes answer my own questions. If the Minister would just even like to nod, then I know that it’s covered.

You’re doing well.

Cool, that’s helpful.

I would like to move on now to the offences section. I want to start with clauses 190A to 190C. This is where a responsible practitioner commits an offence. I want to test two questions over here: based on what my colleague Ingrid Leary has asked regarding recklessness, are we looking at limited or strict liability here, being my first question? My second question is: it specifies an individual—i.e., the responsible practitioner—but what happens if there is an individual that is a part of a hospital system that is responsible but they’re not the company that is responsible? So, normally, we do see two tiers when it comes to fines or when it comes to offences or with a fine attached to it.

Those are my four questions for the Minister so far, and just to very quickly recap, I asked questions around paramedics, questions around the Minister’s amendment to clause 187, and my two questions around clauses 190A to 190C.

11:24

Thank you very much, Mr Chair. Look, some of the questions, quite rightfully, around offences and penalties around neglect are quite timely. As we’ve stated, this bill meets 10 of the abuse in care recommendations. I would like to acknowledge the substantive work that the Health Committee did on this part as well, which I think brings it up to a threshold that, actually, New Zealanders would expect as well. There are already regulation-making powers to create further offences, and, as we would expect under registration, they comply with the respective regulatory body for their workforce as well as the Health Practitioners Competence Assurance Act.

11:25

I would like to look at quite a problematic clause, in my view, clause 187, “Powers of nurse if urgent assessment required”. What this does is it has some pretty sweeping powers that nurses can apply, and also are expected to apply, and there are problems around both of those in situations that are probably evolving very quickly, I imagine. So it’s when someone’s been brought to a hospital and the nurse is having to assess whether they should be under the Act.

The first question I have is that clause 187(1)(b)(i) states that “there are reasonable grounds to suspect that the person may meet”. Previously, that was that they believed that the person “meets”. So these words have been changed and given more sweeping powers to the nurse, and subclause (1A) opens the door even further by saying that “In forming their belief that a person may meet the compulsory care criteria, the nurse can seek the advice of an authorised person”, in section 178. Section 178 basically just has an authorised person as being someone who is a kind of point of contact for the tāngata whaiora.

What I see here is possible is that the first issue, really, is that a nurse who isn’t aware of the circumstances is possibly going to put very heavy weighting on the authorised person. There don’t seem to be safeguards around that, and we’ve got the diminishment of the threshold through the word “suspect” and “may meet” rather than the original words “believe” and “meets”. I’m not clear whether we actually saw that in the Health Committee because sometimes we’re told these things are technical changes. But I’m sure you’ll appreciate that that does open, quite broadly, the powers of the nurse.

The other bit that’s very problematic for me is then we have, in subclause (3), the words “The nurse may—(a) detain the person where they are … or (b) take the person to some other place”. This goes, again, to the real concerns that mental health staff and nurses have that they don’t normally have, unless it’s in the provisions of this bill, powers of restraint. They don’t want them, because their job is to provide care and support, and when they now have a duty to detain a person—I mean, it’s not a duty; it says “may” —it’s going to put them in a really difficult position where they’re expected to do what’s, essentially, a policing function.

We’ve heard some first responders, for example, talk about wanting to wear stab-proof vests, and other unions have said to us that that’s the last thing they want. That is not their job, that is not why they went into healthcare, and this really muddies the waters. So I’m wondering if the Minister for Mental Health can please respond to both of those concerns.

11:28

Thank you very much, Mr Chair. For nurses’ powers under clause 187, the nurse does not decide if the person comes under the Act. I also refer the member to looking at the recommended change, more specifically under clause 182, and how this update is to align with that.

I come back to the principles of the bill, around least restrictive practice as a principle, but also the requirement that the nurse will need to record and report the reasonable grounds, and for that reporting to be provided to the Director of Area Mental Health Services.

Thank you, Mr Chair. I’m just noting that I am still on the offences section and I’m waiting for the Minister’s response regarding my two questions there, and also my questions on paramedics.

I want to ask just one more question around this because what we are seeing, I’m assuming, is different severities between clauses 190A to 190C as well, where we’re looking at, in clause 190C, the words “knowingly provide”; in that case, we’re looking from a mens rea perspective of intention, I’m assuming—I just want to double check with the Minister if that is the case—whereas, potentially, clauses 190A and 190B, as per my colleague Ingrid Leary’s question, could be around recklessness, which has a much lower threshold if you’re looking at the hierarchy of mens rea.

Broadly, if we’re looking at clauses 193, 195, and 196—these are the clauses on pages 125 and 126—others may have questions on the detail of those, but, again, what we’re seeing across those is the inclusion of “an individual” and “for any other person”. I just want to specify in that case that “any other person” refers to a legal person but not necessarily an actual person, if that is the correct interpretation of that.

My final question for this contribution is around infringement offences. While the other sections in terms of offences have a detailed amount of fines, what I’m not seeing in this section—and this is to do more around infringement notice—is that there hasn’t been an amount given for an infringement notice here. Is that intentional or is that covered under another Act? Those are my few questions for the time being.

11:31

Thank you very much. I mean, to answer that question specifically, we’ve tiered penalties when offences are set by regulations. Just going back, in fairness, I think we did move on from—was it clause 184, around paramedics?

Yes. Paramedics, yes.

First and foremost, that clause in the context is emergency as well. In practice, paramedics should request advice and assistance from the authorised person. That’s covered under clause 178. Authorised persons can advise on steps under the Act and request police assistance if required. This is an important safeguard. It builds back to that primary principle of safeguarding.

11:32

Thanks. I’m a bit troubled by the Minister for Mental Health’s answer to my question on clause 187 and what this means for nurses, because, as I understand the clause, it means a person comes to hospital, they’re not under the Act, they might be agitated, someone thinks they should be under the Act and they approach a nurse, and if he or she has grounds to suspect that they may meet the criteria and they can confer with somebody else who is not a clinician and they form that opinion, there’s two really problematic bits. One is that the nurse must arrange for a mental health practitioner to examine the person, so that’s a duty that they have to do. I get that that could be in the interests of the tangata whaiora, but if we couple that with the Minister’s response around “The nurse may detain the person” or “take the person”, that’s a huge burden on a nurse now to be detaining someone who isn’t under the Act.

My question is: what power do they have to be able to use their discretion to detain the person? Because that is a fundamental restraint and power and infringement on another’s human rights. Is this going to stray into the territory of some kind of citizen’s arrest? Where is the authority for that detention that they would be exercising? Because although it says “may”, not “must”, there will be pressure on them to do it because of the application of subclause (2), which says, “the nurse must arrange”. The last thing they’re wanting to do is see the person leave the vicinity of their room or their hospital, and yet they now have to detain that person, probably from an ethical perspective, to be able to meet the obligations of subclause (2). Without the previous amendment that I suggested about the police being present unless not reasonably being able to be there, what kind of work burden does this put on nursing staff, and does it make their job more unsafe?

11:34

Thank you very much, Mr Chair. I suppose we are moving into an operational area as well, but there would be an expectation from the nurse to seek advice from the authorised officer. It is at times because it is publicly available or in the media when people leave environments and the ability to be detained or not.

Thank you, Mr Chair. Just seeking the Minister for Mental Health’s response around some of the questions I had earlier regarding legality, some of the terminologies being used. I do appreciate the Minister’s response to my question around infringement notice. My next question is around clause 200, “Use of force”, and it’s just a simple clarification from the Minister that this particular one simply refers to “a person”. Can I check, in that interpretation, is the person—sorry, this is page 129, line 15, clause 200. In that case, does “a person” have to be any of the named ones we had before—a nurse, police, an authorised person, a medical or mental health practitioner, etc., etc.—or can it be a person of the public? Can anyone do this? Because it doesn’t specify. That’s just my clarification for this section specifically.

11:36

I turn to clause 195, “False or misleading records”. If this is captured somewhere else in the bill, it would be really useful to know it. Apologies, I haven’t found it. But we had a situation in Dunedin where there were abuse in care records that were knowingly destroyed. As I read the bill and clause 195, I can see that there are fines for changing information or recording information misleadingly. I don’t see a fine for destroying the information belonging to people that may have been captured under the bill. That has been absolutely devastating for abuse in care people down in our way who found the process of applying for redress and going through the apology system and all of that incredibly difficult because they couldn’t access their own personal information. Somebody had destroyed it on the basis of bad legal advice, and there was some fallout about that, but I think it’s incredibly important that we do ensure that destruction of records is explicitly mentioned. As I say, I apologise if I have missed it, but from my reading of the bill it doesn’t seem to be explicit.

11:37

I think that’s a fair question. We did traverse it slightly earlier in a different context, but the Act allows, through regulations, new definitions.

Point of order, Mr Chair. Thank you, Mr Chair. Just to seek your guidance—and this may cover later sections—that I’m personally quite happy with where we’re landing on Part 7 but noting there are some outstanding questions. I know the officials are also working incredibly hard and we very much appreciate the time spent here. If it’s OK with you, Mr Chair, for the Minister to answer my questions in a subsequent section.

Just to respond to the point of order, the Minister has indicated, because the information is still coming, that those questions will be addressed possibly in Part 8, if that’s OK.

That’s fine, thank you.

Is that all right? Have you got another question? Have you got one under Part 7 still?

11:38

Yes, Part 7. Just based on what the Minister for Mental Health said about putting destruction of records into regulation, I’d just ask the Minister if he’d consider an amendment to make it a legislative matter, not a regulatory matter. It is of great importance, and if changing records can be in the legislation, I would imagine, for consistency, that destroying records should also be in legislation, not regulation.

Yeah, no, I wouldn’t support that, but I’m happy with the new regulatory powers.

The question is that the Minister’s amendment to Part 7 set out on Amendment Paper 648 be agreed to.

11:39

Thank you, Mr Chair. I’ve been waiting seven parts for this particular part because regulations aren’t my favourite. I want to start by looking at the regulations that are expected in clause 212, noting that, I believe—oh, no, not for this particular bit. I just want to check some of this, particularly when we’re looking at new paragraphs (ca) and (db), in clause 202(1), to do with prescribing fines, etc.—particularly when we’re looking at this whole area that has been listed. I’m wondering how those regulations will manifest, and I want to focus on one particular part of it, which is new clause 202(1)(eb), which is “prescribing infringement offences for breaches of the regulations and prescribing infringement fees for those offences”. Again, this is something that I kind of alluded at the very beginning. Are those infringement notices, or do those have to be offences upon a conviction, etc.? The infringement fee is not very clear on whether it’s a notice or an infringement or upon conviction. I believe I mentioned, on a previous Act, that the Legislation Design and Advisory Committee guidelines are that an infringement notice should be no more than $1,000; so $5,000 is quite high. I just want to check the Minister for Mental Health’s thoughts on that.

I do want to check one thing before I forget, and this is to do with clause 204, in terms of “Director-General may make guidelines and standards”. Very early on in one of the previous parts, the Minister alluded to the fact that conversations around seclusion will be done as a part of guidelines by the Director-General of Health, and I made a note to discuss, in clause 204 here, that there is actually nothing specifically on seclusion in clause 204. Can I just check if the Minister is happy that it falls under the existing paragraphs (a) and (b), under general guidelines, or are there going to be specific standards that the Minister expects when it comes to seclusion?

My final question is mainly just to do with the fact that what I’m not seeing in clause 202, because, again, this is quite new legislation—a lot of this will be done under secondary legislation. It is often prudent, with any sort of regulatory-making power, for there to be at least a review clause by the Minister that says the Minister can review secondary legislation at any time or must review legislation within five years or three years. I just want to check whether the Minister is already intending how that will be reviewed once those regulations have been established.

11:43

Thank you very much. Just going back to the question of clause 200 and who can exercise the power, the first principle is that it’s not a general power to use force. What I would also point out, if I remember rightly, and I’ll be corrected if not, is that clause 200(2) references a number of sections. Within those sections are the prescribed people who can use that force, or the roles they would use. For example, use of force can be used under sections 181(2) and 186(1)—any person, limited to the police, in such situations.

To the question around forms, I suppose, at a high-level position to start off with, where do you start and where do you stop? There is probably a large number of forms in our health system, and, sadly, a large number of paper forms are still used as well. What I would refer the member to is clause 205(2): “If the Director-General or the Director specifies a form, it must be used.”

11:44

Thanks, Mr Chair. This section is a really useful section if we want to strengthen the operation of the bill. This is what was missing, I think, from the abuse in care. There were so many process lapses, so little record keeping, the destruction of records, and also so few requirements on the State and those charged with the care of people to have processes in place to keep people safe. There’s a really ideal opportunity here to provide strengthened safeguarding, which we would welcome.

I do have some amendments on the Table, particularly around clauses 211 and 212. Clause 211 talks pretty vaguely about an annual report on the implementation of the Act. We’ve heard the Minister for Mental Health say clearly that he recognises that reducing and, ultimately, eliminating seclusion will require planning, workforce development, service redesign, and so on. We think, if a report that promoted transparency and accountability around that was required to be published and it was required to be presented to the House, that would be a significant strength to this bill, in the absence of there being another way of ensuring that seclusion will be tailing out. The wording of my amendment would be quite specific, including an implementation plan for the elimination of seclusion. It would need to talk about the actions to reduce and eliminate the use of seclusion, workforce development and training, service and infrastructure requirements, measures to monitor and report on progress to eliminating seclusion, and expected time frames, and it would need to be presented to this House.

If the Minister has the confidence that he appears to that New Zealand will move in this direction, and he’s talking about a similar plan being available in 2027 but without those legislative teeth, our plea to the Minister would be: why not adopt this amendment and give that the legislative teeth that will provide the safeguarding and confidence to tāngata whaiora that we are going to move away from seclusion, even though it hasn’t been sunsetted. I’ve got a further amendment to speak to after this, Mr Chair.

Can I suggest to the member that she go through her amendments to make sure they’re all covered, because I’d hate to close off before she finished her amendments. That might give the Minister a chance to come back. Can I suggest the same thing to Mr Xu-Nan.

Thank you. The second one would be in clause 211(d), which would be that within 12 months of the commencement of the Act, the Director-General of Health would have to issue national workforce capability standards. That would be around ensuring that the workforce are trained in trauma-informed care, supported decision-making, de-escalation and alternatives to seclusion, cultural safety, including Te Tiriti o Waitangi and tikanga Māori, and disability-, accessibility-, and neurodiversity-affirming practice—and that the director-general would review the standards at least every three years and that Health New Zealand would take reasonable steps to maintain and implement compliance.

This is the kind of devil in the detail that’s missing from the bill. This is the stuff that we need to do to get the culture shift, and we’ve heard in the committee that, with that culture shift and with the additional resourcing and training, those changes can happen. Having this reporting requirement would be a way of making that happen.

I also think that clause 212 should be amended so that the director-general must actually review the Act and that the review should be around reducing and eliminating the use of seclusion, and also reviewing whether the Act is having disproportionate impacts on Māori, Pacific people, disabled people, young people, and other population groups. We’ve heard that they are implicitly protected by the new provisions in this bill, compared to the status quo, but if we don’t monitor that, how do we know that they actually are? If we’re not going to explicitly protect them, let’s at least monitor and evaluate so we can understand the impact on those vulnerable populations.

In clause 212, too, I would replace “every 5 years” with “every 5 years after completion of the first review”, because we know that, although there might be the best intentions in the world to try and get seclusion eliminated, it sounds like, perhaps by the end of this decade, we are kicking the can down the road effectively by not sunsetting. Having those reviews is really important.

I’d also like proposed new clause 212A, to insert a requirement for a Government response to the statutory review, so that, when that happens, there is a formal response to each statutory review of the Act within six months. Again, this is just about strengthening parliamentary oversight and providing continuous improvement in the implementation and operation of the Act. I have questions on other parts too, Mr Chair.

11:49

Thank you, Mr Chair. I do want to thank the Minister for Mental Health for responding to my previous questions, and I also want to thank the Minister for responding to my questions on clause 215, on the use of audiovisual links, previously. I appreciate that.

I do want to move on to a further section, noting that others may have questions before that. I will just signal to you, Mr Chair, regarding my colleague Kahurangi Carter’s Amendment Paper 646, that it’s part of a complete package around the sunset clause around seclusion, and that’s something we have discussed previously in Part 2, I believe, already. I won’t be discussing the remainder of that particular amendment, because that’s already been covered.

Thank you for clarifying that.

The question I have around clause 219, which is “Removal from New Zealand”—this is an interesting clause, and I appreciate that it is of sufficient significance that it is elevated to the Minister, I’m assuming the Minister for Mental Health. Can I just check, as it doesn’t give any indication if that person would be a New Zealand citizen or not—I think it is potentially concerning if we are deporting or removing citizens, or is this a temporary measure? I think that clarification is quite important. That’s my only question. But I note that the Minister is clearly interested in the question and will get some advice on that.

11:51

Thank you very much, Mr Chair, and I thank those members for their contribution. I might just tie off a few things that are connected together around the member’s amendments. There are several amendments relating to the annual reporting requirements, specifically around inserting proposed clauses 211A and 211D from Ingrid Leary. I would not support them, because the bill already has mechanisms to enable the setting of standards and ensuring annual reporting on implementation of the legislation.

Also, the member Ingrid Leary submitted amendments relating to the review of the Act, clause 212, and proposed new clause 212A. I would not support that as there is already an annual report on implementation required under clause 211 and a five-yearly review required under clause 212.

There is a response I can actually give to tie two questions from the respective members—one each around reporting on seclusion. Clause 209 provides the power to issue those guidelines which are secondary legislation. It also refers to clause 49, which sets out the requirements for use of seclusion and shows how it must be done in accordance with guidelines 99, subpart 3A.

11:52

I’d just like to pick up on the point made by Lawrence Xu-Nan around the removal from New Zealand, because I think the situation he may be alluding to is the fear of foreign nationals living in this country where there could be a removal order used in a non-ethical way—used to basically do an extra-judicial movement back to their own country. Certainly, as a member of the Independent Practitioners Association Council, I have had concerns about some of the uses of Interpol and other things by foreign States to try to get their foreign nationals back into their own countries.

Under this bill, in clause 219, “Removal from New Zealand”, the Minister must only be satisfied in having considered the advice of the director. It talks about the will and preferences of the person, their support network, the care they’ll receive, and other matters the director considers relevant. But that director is going to be coming from a pretty clinical perspective, and all sorts of things can happen in the health system and, indeed, historically, has happened in the health system where, if men wanted to divorce their wives, often those women would end up in the asylums. Now, I’m not suggesting that that would happen in this case, but I am suggesting that there can be an abuse of this, particularly if the information that is relied on is too narrow to make informed decisions around things that could have real impacts on the human rights of those people, including, potentially, having them go back into jurisdictions where we would not see that they would be safe or have access to a fair trial.

I just wonder if an amendment to clause 219 could be made so that there can be another channel of advice or other channels that the Minister may deem relevant. It could be drafted quite broadly. For example, the Ministry of Foreign Affairs and Trade may have information—maybe even very sensitive information—that the director-general would not have access to, and without there being an assertive outreach to those other agencies, there might be information that the Minister doesn’t know that they don’t know. That is going to have an impact on that, potentially, extra-judicial move away from New Zealand. I’m just broadening it so that the Minister could have access to other forms of information, which would be appropriate, particularly in the event of foreign nationals or people who might have links to other countries. It would be another way to strengthen the safeguards in this bill for human rights.

11:55

Thank you, Mr Chair. I think that’s important questioning from both members around clause 219, “Removal from New Zealand”. I think the first response is to member Lawrence Xu-Nan: it’s not limited to any citizenship or visa status. I would put out, if I’m correct with page 139, clause 219(1A): “The Director must advise the Minister on the following: (a) the will and preferences of the person; (b) the views of the person’s support network; (c) the care that the person will receive once removed from New Zealand; (d) and any other matters that the Director considers relevant.” I’m sure you’ll agree that the intent of this is more about managing a process in a safe way, where the preferences of the person and their family are a key focus. The provision has been used to enable people to return to their home countries to receive care, which I think is very important, in their own culture and closer to family.

11:56

Thank you, Mr Chair. That is helpful, and I think that the important part—and the Minister mentioned this before—is regarding putting it back to the principles of this bill. But if it’s not limited to citizenship, I think it does run into a very interesting but worth mentioning constitution thing, which is the removal of New Zealand citizens and the conversation that while there are New Zealand citizens, my understanding is they might be a citizen but may not have the required support network, even, for them to get the best care for their wellbeing. Would that be an accurate interpretation, Minister?

11:57

Look, I understand the member’s concerns—and that’s what we’re doing here—but I generally would point to clause 219(1A), which I think addresses the member’s concerns.

I move, That debate on this question now close.

The question is that the Minister’s amendments to Part 8 set out on Amendment Paper 648 be agreed to.

Kahurangi Carter’s amendment to Part 8 set out on Amendment Paper 646 is out of order as being inconsistent with a previous decision of the committee.

The question is that Ingrid Leary’s tabled amendment inserting clause 211A relating to a national implementation plan for elimination of seclusion be agreed to.

The question is that Ingrid Leary’s tabled amendment inserting clause 211A relating to an annual implementation progress report be agreed to.

Ingrid Leary’s tabled amendment inserting clause 211B is out of order as being inconsistent with a previous decision of the committee.

The question is that Ingrid Leary’s tabled amendment inserting clause 211D relating to national workforce capability standards be agreed to.

Ingrid Leary’s tabled amendment to clause 212 replacing subclause (1) is out of order as not being in the correct form of legislation.

The question is that Ingrid Leary’s tabled amendment inserting clause 212A be agreed to.

We come now to Schedule 1. The question is that Schedule 1 stand part.

We come to Schedule 1A.

The question is that the Minister’s amendment to Schedule 1A set out on Amendment Paper 648 be agreed to.

We come now to Schedule 2. The question is that the Minister’s amendments to Schedule 2 set out on Amendment Paper 648 be agreed to.

12:05

Thank you, Mr Chair. I think it might also be wise to clarify for the committee that while we support the bill overall, we do not support the Minister’s amendment on Amendment Paper 648 to change “Pae Ora (Healthy Futures)” to “Healthy Futures (Pae Ora)”. That was a bill that we did not support and, therefore, I think that in the essence of consistency, we cannot support that part of the amendment.

On the commencement date, the Minister for Mental Health, on his Amendment Paper 648, has changed or, more accurately, has pushed out the commencement date of this bill by a year, and so I think, if it’s OK for the Minister just to give—oh, wait. Let me finish, let me finish. If the Minister wouldn’t mind just elucidating for the committee on why it has been pushed out.

12:06

Look, that’s a very important question, and the quicker we can answer that, the quicker we get on to the third reading. I would point to the current legislation that we’re repealing here. It dates back to 1992. We’re now in 2026. This is a once-in-a-generation, 30-year repeal and replacement of the mental health Act. There are significant changes in the mental health Act that we are bringing into force today. It was always the intention that we would give the health system in New Zealand two years to respond to these changes, and that is why I’m very confident that with this new commencement date, we send a very clear signal.

On saying that, I do want to acknowledge Health New Zealand, from the board right down to our front-line workforce, who, even before this bill will receive Royal assent, have been actively working on the changes that we are proposing. But let’s be very clear: the point of this bill is to ensure that we provide high-quality compulsory mental health care, and I think it’s only right to ensure that we have the appropriate lead times, as was the original intent for this bill when it went through the select committee stage.

12:07

Thank you, Mr Chair. Thank you for that response, Minister. Just two quick questions on top of that, and one may have been partially answered. I wanted to check this in terms of clause 2(2), and this is specifically to do with Schedule 1 and some of the transitional measures, as well. In terms of some of the current concerns that we have about the system, does the Minister think that the transitional measures are sufficient for the commencement date to be pushed out by two years—with that being my first question.

My second question is a very short one, and it’s more of a curiosity. If this bill is being passed in 2026, can it still be called “the Mental Health Act 2024.”?

12:08

Can I just correct that, and language is important, because we are here today—and have been for four and a half hours—debating the committee of the whole House stage, but the date has not been pushed back. It was always the intention to have a two-year commencement, quite rightly, because Health New Zealand is a big system, and I wanted to ensure that we give the very hard-working front-line mental health and addiction workforce—it’s my support for them to give them this lead time.

12:09

I’m only planning to take one call on this title. I want to echo the Minister’s accolades to our very hard-working mental health staff all over the country for the incredible work that they do under pretty difficult circumstances and, it’s probably fair to say, through successive Government failures to enable them to work in up-to-date and modern facilities, which would make it easier for them to uphold the human rights of our tangata whaiora.

Having said that, I do wonder if we’ve got the name of the bill right. I note that previously, the name of the Act was the Mental Health (Compulsory Assessment and Treatment) Act 1992, and given that we’ve only done a number of fairly incremental changes, in my view—we’ve talked a lot about what we want to do and the direction of travel, but we haven’t really legislated for that—I do wonder if we should make the title really simple and just call it the “Mental Health (Compulsory Assessment) Act”.

The reason I say that is because the Mental Health Bill makes it sound like this is a bill that is going to advance people’s mental health, and I don’t know that it does. Certainly, on this side of the House, what we are looking to do is recognise that mental health is a journey and that mental wellbeing is the destination, and that people cycle in and out. What we have, really, is a bill before us that is very much in the minutiae—as it should be—of when people can be held against their will and have their human rights restricted. So calling it the “Mental Health (Compulsory Assessment) Bill”, in my view, would better encapsulate that.

If it was a mental health bill, I would rather see more provisions in there that were around providing the environment where mental health staff could really lean into the mental wellbeing and recovery of tāngata whaiora, including things like safeguarding for children, the environments that children are expected to be kept in, and explicit safeguarding for their development in times of being kept against their will or under the bill; the same for our Māori tāngata whaiora in culturally appropriate care settings, and with culturally appropriate care being delivered. That hasn’t really been legislated for in this bill. There were opportunities to do that through the tabled amendments that we put on the Table, including provisions for people to give effect to Te Tiriti all the way through the various parts of the bill, rather than just having a kind of holistic overview in clause 5.

Alternatively, I think we could call this the “Mental Health (Lost Opportunity) Bill”. That sounds a little cynical, but that is based on Amendment Paper 648, which the Government brought to the House a couple of days ago, where we did manage to get some real safeguarding for mothers and babies. We know that perinatal mental health is extremely important. We have some of the worst statistics in the world when it comes to maternal suicides, and the involvement of mothers and being able to stay with their babies forms a huge part of their mental wellbeing. When we discussed this at select committee, we were very careful to choose words that would ensure that the safety of the baby was paramount and that the wellbeing and safety of the mothers and babies were paramount. And yet, at the eleventh hour, we had this change to the wording in the amendment. It just loosened all of that quite considerably because it suddenly said, in new clause 38A(1A)(a), “must give priority to the safety and well-being of the baby; and (b) must make reasonable endeavours to consider”. So it wasn’t even a consideration, it was “reasonable endeavours to consider”.

It then also talked about the views of guardians, and we heard a nominal response to our questions about parenting orders and parenting arrangements—

I just wonder whether this is a wee way away from the title, and the third reading coming up might be the opportunity.

Sure, Mr Chair, but the point that I’m making is that we really didn’t have a chance to interrogate that. We were minded of this House, if we had had satisfactory answers to our questions on that amendment, to have voted in favour of the Government amendment. We couldn’t satisfy ourselves that we could do that because we didn’t get the opportunity to ask the questions to ensure that mothers would still be able to stay with their babies in the same way as had been intended. That is why I think we could call this the “Mental Health (Lost Opportunity) Bill” because it looks like the amendment that we don’t support is going to erode the one change—the one change—that we were able to make that had any significance, really, in the select committee stage.

12:14

Just a final comment from me to respond to the member Lawrence Xu-Nan with his very eagle eyes referencing the 2024 reference. I want to ensure him that I’ve been assured that this will get updated in House processes and become “2026”.

The question is that the Minister’s amendment to clause 2 set out on Amendment Paper 648 be agreed to.

Kahurangi Carter’s amendment to clause 2 set out on Amendment Paper 646 is out of order as being inconsistent with a previous decision of the committee.

Mr Speaker, the committee has considered the Mental Health Bill and reports it with amendment. I move, That the report be adopted.

The Mental Health Bill is set down for third reading immediately.

12:16

I present a legislative statement on the Mental Health Bill.

That legislative statement is published under the authority of the House. It can be found on the Parliament website.

I move, That the Mental Health Bill be now read a third time.

It is a privilege to stand here as New Zealand’s first mental health Minister, today, at the final stage of this bill. This legislation represents a significant step forward, modernising a system that is more than 30 years old, and bringing it up to date with how we expect mental health care to be to be delivered in this country.

The bill sits within the Government’s broader commitment to improve the effectiveness of mental health and addiction services. It responds to long-standing calls for reform, and contributes to the Government’s response to the Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions, ensuring our system is grounded in human rights, safety, and effective care. It also builds on the work already under way to strengthen our mental health system: improving access, growing the workforce, and strengthening crisis support by helping ensure people receive effective recovery-focused care when they need it.

At its core, this bill shifts us towards a more right space and recovery-focused approach, placing people at the centre of their care and supporting them to make decisions about their own support and recovery wherever possible. It provides a modern legislative framework for when compulsory care is needed as a last resort, while protecting the rights of people under compulsory care and ensuring care is therapeutic, delivered in the least restrictive way, and responsive to individual needs.

I want to acknowledge two areas where the bill introduces particularly important changes. First, on seclusion, the bill takes a much stronger approach to reducing, and, over time, eliminating the use of seclusion. It prohibits its use for children and young people, and strengthens safeguards and oversight to drive its reduction across the system as we work collectively towards eliminating this practice.

Second, on the use of electroconvulsive therapy, or ECT, I want to be clear that while ECT remains an important treatment option for some people, the bill lifts the threshold for its use and puts stronger safeguards in place to ensure it is only used in tightly controlled circumstances in line with best practice.

The bill has been the subject of extensive scrutiny by the Health Committee, which received hundreds of submissions and heard directly from people with lived experience: families, clinicians, advocates, and community organisations. As I’ve said before, I want to acknowledge those who shared their experiences. Your input has directly strengthened this legislation.

Through the committee stage, a number of targeted amendments have been made to ensure the legislation is clear, workable, and provides strong safeguards in practice. These include clarifications to ensure powers and rights are clear for those working under the legislation, such as clarifying when police detention powers begin and end, strengthening requirements for recording and oversight, and refining provisions to ensure they are workable in practice, including those relating to the care of birthing parents and their newborns.

The changes also ensure that the Ministry of Health can require Health New Zealand to provide the information needed to support the ministry’s regulatory monitoring and assurance role. These changes matter and ensure that the intent of the legislation can be delivered effectively on the ground. Ultimately, this will mean people receive care that is more respectful, more responsive, and more focused on supporting their recovery. It ensures people can access care when they need it, while putting stronger protections around how that care is delivered.

While the passing of this bill is a major milestone, I also want to acknowledge the significant amount of work that lies ahead for the sector to implement these changes. This is why the commencement date has been updated to ensure the sector has a full two-year lead-in period following enactment. This reflects feedback from the sector about the need to prepare for these changes and implement them safely.

This is now a bill that is fit for purpose, well scrutinised, and ready to become law. The process has had integrity. People have been heard, concerns have been addressed, and the legislation has been improved as a result. The Mental Health Bill represents a modern, balanced, and more effective approach to compulsory mental health care in New Zealand. Today marks a significant milestone for our mental health system.

To close, I want to acknowledge the many people that have contributed to the development of this legislation, particularly those with lived experience. I want to thank them and their families for helping to improve the system for others in the future. I commend this bill to the House.

The question is that the motion be agreed.

12:22

It is ironic today that we are talking about updating mental health laws when the front page of the Otago Daily Times has shone a light on the Ombudsman’s findings of some of the worst abuses of human rights he’s ever encountered at Wakari Hospital, which is detaining people who have mental health issues and intellectual disabilities. I’m not going to go into some of the abuses that they endured, but, needless to say, it is just a stark example of why our laws need reforming but also why the legislative safeguards need to be in the reformed laws so that we never ever encounter that kind of abuse again.

We hear that too often in this House. We have the abuse in State care, the abuse in faith-based care, the abuse in Wakari. We have this bill before us, which is certainly an improvement on the current mental health Act, but I know for many tāngata whaiora and people working in the sector, it does not go far enough, and it really does feel like a missed opportunity for us, given that it is unlikely to come back before this House, as the Minister for Mental Health has said, for a decade or perhaps 20 or 30 years. The reason I say that is because we still have the binary definitions of mental health competence in this bill that fly in the face of best practice internationally, which would suggest that better outcomes are reached if people are assessed on their competence on a decision-by-decision basis. Mental competence is a fluctuating experience. It is not a state or a label to be put on to a person. The application of the law, as it will currently happen under this bill, doesn’t allow us to get up to speed with that international thinking.

The other element is around the participation of tāngata whaiora. A lot of noise has been made in the House about their increased participation, and, indeed, there are some avenues now for them to have more of a voice. But if we were really going to look at the evidence and take an evidence-based approach, I think it’s worth putting on the record that the Health Committee saw no evidence that compulsory care orders work for the 6,000 people in our communities who currently live under them, and yet there is good evidence from other jurisdictions and studies conducted by people in New Zealand to show that those who participate voluntarily in their own mental health journey are far more likely to achieve states of wellbeing and to be in recovery. If we really wanted to make this a mental health bill, we missed the opportunity to think through how we could reduce the number of people on compulsory care orders and how we could skill up the sector and resource the sector to really be able to walk alongside our tāngata whaiora and their families to enable wellbeing.

Instead, what we are often seeing is people cycling in and out of the system—feeling well enough to be out in the community, sometimes well enough to work; an event happens or a crisis point is reached, for whatever reason, in their mental health, and they’re back into the hospital system and back under the Act. We need to be more aspirational than that. We need to be looking at the evidence that tells us how people can achieve recovery longer. I fear that in looking and focusing our efforts on the compulsion elements of this bill, we missed the opportunity to look at recovery through participation.

We also don’t want to overstate the changes that have been made to seclusion, because media seem to be a little confused in saying that this bill will end seclusion. Let me state very clearly in this House: it will not end seclusion. It does signal a direction of travel, and there will be an opportunity for regulations to be made, but certainly the ending of seclusion needs to be led with a legislative commitment. The order of events would seem to make sense to me that when legislation requires something to be done, then resources are freed up and the sector is trained and things happen to enable the legislation, because people do not want to act unlawfully. Without that legislative commitment, I fear that we are simply kicking the can down the road, and with the best will in the world, if we also don’t have legislative safeguards to then monitor how we are doing according to those performance plans of trying to implement an end to seclusion, how are we going to actually measure progress?

The reviews in place for seclusion are five-yearly. What we said in our dissenting opinion on the bill, although we’re supporting the bill, is that we wanted seclusion to be sunsetted within five years. That felt like a reasonable amount of time. We heard a lot of really positive comments from the Minister about all the good moves that are happening currently in the sector to sunset seclusion and to have people trained up and be competent to do that. There are two really good examples in Auckland and Wellington where that has actually happened. Instead of being bold and sunsetting seclusion in five years and then providing the enablers through the legislation, it does feel like we’ve kicked the can down the road. This bill won’t come into effect for a year or two, and so it’s going to be an even longer time. Again, what we don’t have is the requirement to report on it, which could have been made available through some of the 40 or so amendments that we put on the Table.

The other area of strengthening that would have been really valuable would be for vulnerable communities. I’m thinking here about our under-18-year-olds. We heard lots of very powerful submissions about how damaging the current compulsory care orders and the current compulsion under the Act is for our young people, and for them to be accessing adult services. If they are to access adult services while we try to step up resourcing for child-friendly ones, we should at least have legislative safeguards to make sure that those places take into account that they’re young. They need space to be able to move, they need sunlight, they need to feel that they’re in a culturally appropriate setting for their own personal identity, and they need to be able to continue to develop as human beings as they cycle in and out of competence under the Act. We have not put any of those safeguards in, because there is a failure, I think, from the Government to recognise the need for equity in this legislation.

The same applies to the lip service paid to Māori. We have a clause 5 that doesn’t really require application of Te Tiriti principles across different parts of the Act, and certainly no recognition that tāngata whaiora Māori make up the vast numbers of those who are impacted under mental health compulsory orders, particularly in seclusion. If that’s the case, why don’t we give them the assurance that they have been considered and safeguarded? Why didn’t we put those safeguards in?

It’s the same for our neurodivergent and disabled community. Time and time again, it is our disabled community who bear the biggest brunt of abuses to human rights, and yet they are expected to be scooped up in the general provisions of the bill rather than having explicit mention, including the ways that they present in the world, the ways that they communicate, and the assumptions that cannot be made about them when somebody is looking to put them under the powers of the Act.

There was a real opportunity to do that: not only to safeguard their human rights but to send them a message from this House that we do recognise the abuses that have happened, we do recognise their vulnerability, and we do recognise their need for safeguarding. Once again, we have failed that community and I find that quite heart-breaking actually.

The other two areas that are interesting—one is interesting; one is disappointing. The interesting one is that when it comes to children and young people, we welcome the fact that they cannot be kept in seclusion, but we did not hear why they would still be protected from other forms of restraint that could be as bad or worse than seclusion. The reason I raise that is that was the Minister’s response to why we can’t end seclusion for adults: that they could become more vulnerable with other forms of restraint. Now, the logic doesn’t apply both ways. I have a real fear now that our young people, without these extra safeguards, may find themselves in other restraint situations such as with medication or physical restraints that will replace seclusion given that we haven’t safeguarded them.

Finally, there’s Amendment Paper 648, which was dropped on the Table. We had very little chance to scrutinise it. The Government had months and months to get those changes to us. They were hard-won changes to try and recognise mothers and babies and the need to keep them together unless there are safety issues for the child in particular. We had the wording down pat, it looked safe, the officials had advised us on it, and suddenly there was this Amendment Paper that seemed to undo that presumption and make it much more of a balancing act and involving the opinions of other people—non-clinical opinions and opinions that are not about the safety of the child or the mother. We do support this bill, but we think it could have gone a lot further.

12:32

Thank you, Mr Speaker. The Green Party does support this bill, but, as the previous speaker has alluded to, there are some serious concerns with this, which we will hopefully see further improvements on as this bill gets implemented. I do want to acknowledge the engagement from the Minister for Mental Health as part of the committee of the whole House stage; I want to acknowledge the members of the Health Committee; and of course my colleague Kahurangi Carter, who is our mental health spokesperson, in her role in all of this; but also, most importantly, acknowledging the communities, tāngata whaiora, and everyone who submitted and shared their personal stories as we went through the process of this bill. We did have quite a robust discussion during the committee stages on all aspects of this bill. It is quite a substantial bill, with eight parts, and I think, considering a bill of this nature may not come to the House again in a while, it’s important for us to be able to discuss each of these parts in detail.

I think, as a part of Part 1, we were looking at the overall purpose and principles. That is incredibly crucial, and I think the fundamental aspect of that—with any purpose clause—is whether they are an aspiration or they are binding. It’s good to hear from the Minister that it is binding; this is something that could be challenged in a court of law if any of our system doesn’t uphold that particular purpose. It’s also heartening, as we go through the rest of the bill, for the Minister to keep drawing back to the principles of this bill. I think that’s an important consistency that we would expect—and we expect no less as this bill gets implemented.

I do want to mention that there are definitely areas of disappointment for the Greens that we believe could have gone further—reflecting submissions, both the voices from the community but also upon reflection of the most recent royal commission of inquiry around abuse in care and how we can do better as a country overall when it comes to upholding the rights of disabled people here in general and also our global obligation under international conventions around human rights.

Even though we hear from the Minister that the principle of the bill is going with the least restrictive way, we are disappointed that the Government has not, and the Minister has not, accepted my colleague Kahurangi Carter’s amendments around having community and voluntary care as the default and only using compulsory care as a final resort. The fact is that there is currently no specific commitment around the provision of that community care to ensure that there is wraparound support for the wellbeing of tangata whaiora. I think that is an area that we’re hoping we can see improvements as we see in other parts of the health sector in terms of the community health sector, where we’re looking at people wanting to have that home and community care as a starting point and move on to other parts of care only as required.

The other thing that is worth noting in terms of Part 1—which ostensibly could be the most important part because it sets that basis of how we are to understand the rest of this bill and particularly the operationalisation of this bill—that I feel could potentially be a bit of a gap is around clause 8 of this bill regarding the meaning and also under what grounds assessment should not be taken. There are just a little bit of consistency issues when it comes to that and section 21 of the Human Rights Act where certain areas have not been considered. I think when we’re looking at the further part in Part 8, and we’re looking at removal from New Zealand, that during the committee stage we discussed what happens if, for example, for certain cultures and for certain regions unfortunately sex is still an important factor and maybe a considered factor, but that’s not a ground for there to be prohibited grounds for compulsory assessment. I think there are some consistency issues there that will be interesting to see how they would develop.

Moving on to other parts of this bill, noting that the Minister had an Amendment Paper, in most cases we are happy with the minor updates that the Minister has made. But as we heard from the previous speaker, Ingrid Leary, new clause 38A that the Minister has made around the ability for a birthing parent to be entitled to have the baby remain with them is a bit of a concern and does seem like a move away from what the Health Committee has come to in terms of the point they’re making, which is unfortunate.

I also want to acknowledge my colleague Kahurangi Carter and her Amendment Paper around the sunset clause for seclusion. Yes, although we’re hearing from the Minister that there is a general moving away, there is no fixed deadline or requirement for there to be no seclusion here. As well as both in terms of seclusion, but also what we’re seeing in clause 50 of this bill around electroconvulsive therapy, I do implore—and it’s good to hear from the Minister as a part of the response—that we can do better in how we report on that and the level of detail that we can report. In the case of seclusion, we must have transparency around the hours that people are spending, particularly the consecutive hours that people are spending in seclusion, which the previous speaker has also alluded to as some of the more egregious findings most recently by the Ombudsman.

In terms of other parts of the bill, I want to tie in a few of the parts, particularly in Part 4, when we’re looking at the forensic compulsive care. I think that’s an interesting interaction with something that we have seen just recently in the House around the debate on the declaration of inconsistency with PPOs and EPOs—with public protection orders and extended protection orders—and what that would mean in the context of the forensic compulsory care. Particularly, I am still a little bit concerned in terms of the response from the Minister on how some of that biometric data could potentially be used and stored. I think this is an area that has not had thorough consideration. As a member of the Justice Committee, I know that this is something that the Justice Committee actually comes across reasonably frequently. It’s important for us to make sure that, across different agencies and different systems in our public sector, we do have that consistency on biometric data. We’re obviously seeing some of the more concerning areas with biometric data use—most recently within Immigration as well, particularly with The Migration Five—so I think that is an important consideration to make.

Further on, in terms of the area we’re looking at with the Mental Health Review Tribunal, it’s also important to note that we did get reassurance from the Minister that the Mental Health Review Tribunal is able to not only actively initiate a review of specific cases or a care plan but also is able to undertake their own research. I think, most importantly, it is heartening to hear that the Minister has made that commitment that the decisions that the Mental Health Review Tribunal make are decisions; they’re not recommendations. We expect there to be a binding nature to that.

Finally, I think it’s also important to discuss that we did also go through some of the offences and regulations. Again, all of these provide the overall package in this particular area of our health system where there hasn’t been the level of accountability we would like to see, and, unfortunately, we have seen people falling through the cracks. Whether it’s regulations or whether it’s offences, it does provide that additional safety net.

I want to finish by saying that, fundamentally, it is important for us to ensure that tāngata whaiora have the kind of safeguards that are based on allowing them to have dignity and to make sure that their wellbeing is front and centre. I do want to thank everyone in our health system for their ongoing mahi in this area.

12:42

Thank you, Mr Speaker. Look, I rise on behalf of ACT to add our support to the Mental Health Bill. It’s great that it has got cross-Parliament support to modernise this piece of really important legislation. As we’ve already heard, this is being updated after over 30 years. It is rights based and recovery focused. It is a modernisation. It has almost also been through its own two-year parliamentary process, and I want to thank all of those in the mental health sector who took the time to submit on it, and also the Health Committee and MPs across the House who have engaged on it extensively in the last 24 hours. I will be commending it to the House. Thank you.

12:43

Thank you, Mr Speaker. I rise on behalf of New Zealand First in support of the Mental Health Bill. These reforms in this bill will modernise the compulsory mental healthcare legislation. It is well overdue. The overhaul is absolutely necessary. It will place people at the centre of their care. It’ll be respectful of their rights in terms of their care. I commend it to the House.

E te Pīka, tēnā koe. I want to acknowledge that we are, today, taking an important step, a step that many people, many whānau, and many communities across Aotearoa have waited far too long to see. This bill repeals and replaces the Mental Health Act 1992. It responds to He Ara Oranga, which found the old Act was out of date, overly reliant on coercion, and inconsistent with a modern human rights approach to mental health. For that reason, Te Pāti Māori supports this bill.

But support for this bill doesn’t erase an important question: why did it take so long? This legislation was introduced in 2024, the select committee completed its work in April 2025, yet here we are debating its final stages under urgency, only months before an election. If mental health was truly a priority and if the lives of tāngata whaiora, of rangatahi, of whānau and aiga, and of all New Zealanders were genuinely valued, then why was this bill not completed two years ago instead of today? Mental health worsens when one waits. Every delay matters when people are struggling to access support, when whānau are carrying grief, and when communities are crying out for change.

For Māori, those inequities are even more painful. In the last year alone, 630 lives were lost to suspected suicide in Aotearoa. A week ago, I attended the tangi of Preston Herewini, a young man with young babies and a wife, who is now widowed and bereft of the life that they dreamed of together. I stand here wondering what could have been done for Preston, for his whānau, and for every single whānau carrying immense grief and unanswered questions. E ngau kino nei te mamae me te mauāhara mō rātou, Preston, e ngā huhu a mate. Kia whakawhetūrangihia koutou e Matariki ā kō tonu nei.

[The anguish and resentment afflict me badly for those—Preston—who have passed on. May you soon be immortalised as stars by Matariki.]

Māori continue to experience higher rates of mental distress, suicide, addiction, and unmet needs than non-Māori. These are not failures of our people. They are the consequences of colonisation, of poverty, of disconnection, and of repeated breaches of the Te Tiriti o Waitangi. That’s why Te Tiriti matters. That’s why Te Pāti Māori welcomes the inclusion of a Treaty clause in this bill. In fact, it is the very first bill, this term, that this Government has introduced and has chosen to include one. This is the only one. Before we celebrate, let us acknowledge the contradiction, because this Government removed Treaty provisions from corrections legislation, despite Māori being disproportionately represented in prisons. Yet here, where Māori are also disproportionately represented in poorer mental health outcomes, Te Tiriti is recognised. Where is the consistency?

Te Hiringa Mahara’s latest road map makes clear that urgent action is still needed for Māori, for rangatahi, for rural communities, and for those facing barriers to care. Young people continue to experience high levels of psychological distress, while Māori continue to experience significant unmet need. As the member for Tāmaki Makaurau, I see these realities every single day. I see whānau carrying the weight of housing insecurity, poverty, addiction, and disconnection. I see communities doing everything that they can to support one another while struggling to access culturally safe services. That is why equity must mean more than treating everyone the same. It means directing investment where the need is greatest, it means trusting Māori providers, it means funding kaupapa Māori solutions, and, yes, it means investing in Māori proportionate to the burden that Māori carry. That is not preferential treatment. That is fairness. That is honouring Te Tiriti o Waitangi.

Today, we support this bill because it represents progress, but, tomorrow, we will continue to hold the Government to account for its implementation, because legislation alone does not save lives. Whānau do. Communities do. Culture does. And Governments do, only when they match words with action and aroha. Ruia te aroha kia pua mai ai ko te aroha—when kindness is sown, kindness is received.

12:48

Tēnā koe, Mr Speaker. On behalf of the Green Party, I stand to also offer our support towards this legislation, knowing that this is a significant shift and change to the way with which our mental health sector will be delivered into the future when it comes to compulsory assessments and treatment. I pay tribute to the select committee who sat and had rigorous debate, heard submissions from across the community, tāngata whaiora, and officials of the Government who came and presented evidence and entered into a wānanga in terms of what we have today. But also I know that, today, in the committee of the whole House, this side of the House offered a tangible—how would I say it?—amendments that were quite reasonable. These amendments, we thought we could have progressed in a shared understanding of seeking the best for tāngata whaiora, for whānau, and for communities, and particularly also for our kaimahi in the workforce.

I want to note one of those amendments from my colleague Kahurangi Carter, in terms of the solitary confinement, the seclusion, again. We’ve heard in the House, through and through, our ongoing concerns around the need for a sunset clause. Knowing that we are on track, we have got a work plan, we are working in this space in order to try to find a way whereby we can provide safety of care and also a pathway to tērā pea ka oti tēnei mea ko [potentially end this thing called] solitary confinement. We still remain concerned, because the seclusion was spoken to and has been recommended by the Mental Health and Wellbeing Commission and also by the Mental Health Foundation and the Health Action Trust.

We absolutely tautoko the way in which we are putting whaiora in the centre of their care and having the rōpū whaiora and the hauora of the person in care at the centre of how we are trying to navigate them through the system. But, as was raised during the committee of the whole House, again, how do we connect whānau into the care and keep them up to date with what is occurring when we have these collective groups that come together, and navigation for both whānau and whaiora as they move through the system. We look forward to the way whereby we can support those who may have neurodivergence and other intellectual handicaps, whereby we can look at them and provide consistent protections with the disability convention and ensure their pathways are non-coercive, that whānau are involved and centred, and that it is evidence based. That continues to be a theme that we share.

Of course, it’s good that we’ve seen some of the changes in the legislation that embrace and ensure that sexual orientation and gender identity cannot be used as a factor when determining someone’s level of impaired mental health, and the stronger interpretations around the processes and the way that we’re able to, through the committee of the whole House, go step by step in understanding where to from here—what does the hui whaiora do, where does the whānau sit, what is the definition of a mental health practitioner, and how can we keep our babies with patients as much as possible?—taking that tāngata whaiora - centred approach.

We do tautoko this legislation, but we do want to see stronger measures around equity of access and the way in which rural and urban populations can receive the equity of care, as well as tangata whenua. While we do have Te Tiriti o Waitangi provisions within the legislation, there’s always more work to be done. I pay tribute to the way that submitters came into the Health Committee and raised these issues. Knowing that, by and large, it is tangata whenua who are held in a compulsory nature, how do we take an inclusive approach; how do we support whānau to understand what is happening and also, when they are released, their navigation back into community- or whānau-based care?

These are ongoing conversations, and it’s about resourcing, ultimately. This legislation will only be as successful as how much resource and kaimahi and training is available to support the system to be able to deliver better health outcomes for tāngata whaiora and better health outcomes for our community.

12:53

I rise in support of the Mental Health Bill. We’ve got support right across the House for this bill. It’s modernising our mental health framework. Therefore, I commend it to the House.

Thank you, Mr Speaker. Labour supports this bill. It’s a law, developed more than three decades ago, as has been discussed on several occasions, that no longer reflects society’s more modern understanding of human rights, let alone mental health. This reform is long overdue. The bill establishes, as I said, a much more modern, rights-based framework. It recognises that mental health care in general, where possible, should be delivered with people, not done to them, and these are significant improvements. That is the principal reason as to why Labour will support this bill.

However, at third reading, I just want to take a couple of minutes today to say that we also have to be honest about what this legislation alone can’t do and can’t achieve. The new law can create rights, and it does, and duties and safeguards, which it does, but it can’t by itself provide the staffing, the facilities, the community services, the cultural capability, and all the time required to actually make those rights a reality. That concern has, I think, been raised not only by people on this side of the House but by mental health organisations and clinicians and advocates and people with lived experience, who submitted on this bill during the process. These are not reasons to delay this reform; they are reasons, ultimately, to properly resource it.

I want, also, to take the time to acknowledge everyone that works across the mental health and addiction system, be they psychiatrists, psychologists, nurses, social workers, occupational therapists, counsellors, care support workers, cultural workers, advocates, and all of those community providers and support staff who, quite frankly, don’t get the recognition they deserve and work under really tough circumstances. They often work with people who are at their most vulnerable and experiencing the most frightening moments of their life, and they make considered decisions to make those lives better. A rights-based law must not simply place more responsibility on those very people who are doing that work, on those individual workers, while failing to address some of the conditions in which they actually do that work or are expected to.

That means that the Government, whilst we’re happy to support this bill, we acknowledge it is not the end of the road. This is the first step; the next step is that we want to hear and we want to see and we will keep asking questions and keep monitoring as to where a really good implementation plan lands. We welcome the improvements made through the Health Committee, and I’m not going to go into the details. I think they have been well traversed, both through the committee of the whole House and through the contributions to date on this third reading. I do also just want to acknowledge that ending seclusion requires appropriate staffing, and it requires all the requisite therapeutic facilities, specialist training, and those alternative models of care if it’s going to happen. Simply, the intentionality and the purpose within this bill, which will soon be legislation, isn’t going to be enough to achieve that aim unless there’s something a little bit more definitive behind it.

This bill is better than the law it replaces—excellent—but passing it alone is not the end of the reform. As I’ve said, it’s just the beginning of the implementation phase, which we will be keeping a close eye on. Labour does support this bill.

12:57

We’ve all learnt from past mistakes in how compulsory mental health care has been handled. This bill modernises the system, strengthens safeguards, and ensures that we don’t repeat those mistakes again. Most importantly, it balances care with dignity and support with human rights. It puts patients at the centre of decisions about their own care. By focusing on patients first, this bill will improve outcomes and enhance wellbeing. I commend this bill to the House.

The time has come for me to leave the Chair for the lunch break. The House will resume at 2 p.m.

The House is resumed on the third reading of the Mental Health Bill. We’re up to a split call, and I think it’s Labour leading.

14:00

Thank you. It’s good to take a call on the third reading of the Mental Health Bill. It was really interesting to hear through the committee of the whole House process the questions raised and the answers from the Minister for Mental Health. I wanted to speak to a few of those things today.

The first one I wanted to mention was clause 42 on the decision making for compulsory care. There were questions from my colleagues around ensuring that the decision making for compulsory care was made by medically qualified professionals, and I really wanted to emphasise the importance of having qualified professionals in this space dealing with some—sorry, “dealing” is not a good word; supporting—of our most vulnerable people in New Zealand.

Last night, when I took a call on this bill, I spoke about my brother-in-law Nicky, who passed away 11 years ago while he was in compulsory care. The coroner found that Nicky’s death was avoidable due to a number of mishaps which led to him taking his own life. The reason this is so important to me is to honour Nicky’s life and our whānau who still deal with that loss every single day; my kids, who will never meet their uncle. For him, when he was in the compulsory care facility, he left the facility on unescorted leave, and that was part of what led to him eventually taking his own life. The key thing there, where things fell apart, was that there weren’t medical professionals in place to assess him to see that unescorted leave was not going to be appropriate for him. There was a point where the decisions were made by security guards. I respect security guards a huge amount—they do very, very valuable work across our country—but it’s important that we have medically specialised professionals working with people in order to protect them.

One of the other aspects of this that is important to me is the involvement of whānau and family in decision making, and this bill goes some way in that direction. I think there is more work to do, but it goes some way to ensure that whānau and family are included in the decision making around their loved ones in order to have a holistic approach. Going through the experience that I went through and that our family went through with Nicky, I met person after person after person after person who had their own story of devastating loss of people within the mental health system. It’s those stories that empower me to stand and support this bill as a step towards better management in this space. It’s not as far as we would have liked to see. There are many more changes we’d like to see in this space to ensure that we are really respecting all human rights and the independence of individuals, but this is a really good step.

The second bit I wanted to talk about very briefly was the amendment to clause 38A in Amendment Paper 648 from the Minister, which substantially reverses the changes made by the Health Committee. This is regarding a parent being able to stay with their baby. I don’t support the amendment and the changes because I think it’s paramount that, if safe, a child or a baby should always stay with their parent—especially an infant. All the parents in the room understand that connection you have with your children, especially when they’re babies. For a parent dealing with substantial mental health concerns and then, on top of that, potentially having their baby taken away—I think we can do much better than that.

With those two points, I support this bill and commend it to the House.

14:05

Thank you, Mr Speaker. This Mental Health Bill intends to change substantially the culture and direction within mental health treatment and the compulsory care sector. The implementation of this bill will be the important element of it. Training and further workforce development, which we have led already, will be very vital. I commend the bill to the House.

14:06

Thank you, Mr Speaker. I rise to take a call on the Mental Health Bill. I just want to traverse some of the reasons Labour is supporting this bill, but I also just note some areas there—and my colleagues have laid a lot of these points out very well already—where we do have some specific concerns around some of the missed opportunities within this bill.

It’s been traversed well today that the current Act from 1992 is very outdated and it no longer reflects modern human rights standards. This bill is a significant improvement on the current Act, but, as I’ve already said, there are some missed opportunities there. It falls short of some of the transformational reform that could have occurred through this bill. I think there are some lessons here around how much further the Government could have gone to really make this a transformational approach.

There continue to be issues around implementation, workforce planning, and accountability. We in particular want to see stronger protections for Māori, for disabled people, for children and young people, and for other vulnerable groups affected by this particular bill but also affected in their daily lives by issues related to mental health. We think that the bill should contain a stronger commitment to ending seclusion. We do note that there have been some strengthened safeguards around the use of electroconvulsive therapy—a complex and controversial at times treatment that occurs in mental health—and we believe that, given that, there are some further protections that are warranted.

I wanted to talk briefly about some concerns raised by my colleague Tracey McLellan when she put questions to the Minister for Mental Health in the committee of the whole House stage around the lack of an increase in the number of forensic beds in prisons. This is one of those missed opportunities that I see, as an electorate MP, when dealing with whānau members of people who are in prison who have committed a crime but have a significant mental health need and who are unable to access a forensic bed.

With the growing prison population, what we are seeing is a growing number of people within prisons who are unable to access a forensic bed to receive the treatment that they need. There is one such constituent in my electorate of Nelson, and we’re working very closely with the mother of this particular person, who has unfortunately had repeated time spent in prison. When he is unable to get access to the holistic care and support that he would get from a forensic bed, what it does is it makes his condition worse. He’s, therefore, unable to access opportunities for rehabilitation or care within the prison system. The prison system is doing everything it can for this young man, but without access to proper mental health support, what will happen is, when he returns into the community, he may well return in a state where he’s actually less well than when he first entered. There were some opportunities in this process for that to be recognised.

Labour’s alternative view, which is outlined in the select committee report and through speeches given by my colleagues, was informed by evidence from tāngata whaiora and people with lived experience, their whānau, clinicians, disability advocates, the Ombudsman, and other organisations with safeguarding and oversight responsibilities. What that clearly showed was the need for stronger safeguards, for better implementation, for greater accountability, and for a more participatory mental health system. We believe that the bill should be strengthened by giving effect to Te Tiriti o Waitangi—including explicit recognition of tikanga, hapū and iwi—by strengthening decision-making processes for people to make supported decisions; by moving even further towards voluntary participation wherever possible, where the therapeutic evidence supports this; by improving the treatment of advance mental health directives; by strengthening protections for disabled people, children, and young people, and other vulnerable groups; by requiring legislated implementation planning and workforce training; and by strengthening accountability and public reporting.

In particular, the bill has some changes around seclusion, and we are concerned around the fact that there’s still retention of seclusion in limited circumstances. We support New Zealand’s commitment to eliminate seclusion, but, as my colleague Ingrid Leary pointed out in an earlier contribution today, the Ombudsman continues to make scathing recommendations around the practice of seclusion and how much it harms those people who experience seclusion when they have high mental health needs. We believe that the legislation should include a commitment to ending seclusion within five years, that there needs to be a system-wide phase-out for that, and that this is one of those missed opportunities.

I mentioned the use of electroconvulsive therapy (ECT) earlier, in the beginning of my speech. What is good is that the bill provides some additional safeguards for adults, including specialist oversight where statutory authorisation is required. It also provides some additional safeguards for people under 18, so it may only be used in rare and exceptional circumstances where two independent psychiatrists—one with expertise in ECT and one who is a child and adolescent psychiatrist—agree it is necessary to save a life or prevent serious harm, and the young person’s care plan and any advanced mental health directive must also be considered.

It strengthens reporting requirements around the use of ECT and it creates an offence for failing to comply with the statutory ECT safeguards. As I said earlier, ECT is one of those treatments that has controversy, complexity, and concerns around it, and for good reason. Our view on this is that we do accept the evidence that ECT may, in rare and exceptional circumstances, be an appropriate treatment of last resort. We support the strengthened safeguards included in the bill, but we also consider that adults should receive greater protection where they have made an advance mental health directive refusing ECT and that should have greater consideration.

We remain concerned, as well, that the bill contains no legislative requirement for comprehensive implementation planning or workforce training and that, without sustained investment and training and accountability, there is a real risk that the bill—which has a rights-based approach—won’t actually be fully realised in practice. That’s the challenge: it’s all very well for us to put everything that we have into legislation, but we actually need to see that true implementation. I come back to the comments I made earlier around the lack of increase in forensic beds. It’s a very good example of where we’ve got legislative change that is very, very good, and Labour will be supporting it, but we have circumstances where we’re not actually seeing the same uptake in resource that can match that.

Consider a prisoner who may have very serious psychotic conditions where their behaviour leads them into a place of criminality and they are taken through a court process and ultimately end up in prison, which is a place that causes immense stress and harm for them and actually makes their situation worse. I think about a particular young man in my electorate whose family we have supported now for a long time. I think this is a missed opportunity for us to look at what he would need in a system in order to get that care so that, when he returns to the community—because, ultimately, he will return to the community—he returns to the community in a state where he is less unwell. He will never be 100 percent well—that is the nature of his condition—but when he is in a better place, he will not be in a heightened state of constant stress and will be in a better position, and he’ll be better equipped to then face the world when he returns, because he will.

There are stories like this up and down the country. I do want to commend the Minister for the bill making its way through the House this far, and I thank all the officials for the work that they’ve done. It is a very good improvement on what is a very outdated Act, but there are a number of missed opportunities, which I’ve outlined, and Labour believes the Government could have gone further to ensure that the resources are there to properly implement and make the changes that we need so that people that are within the mental health system get the support they need to get well again so that they can continue to be thriving members of our society. I commend this bill to the House.

14:15

It was a privilege to chair the committee through the passage of this bill. I want to thank all submitters and members for their unanimous support across the House. The Government is committed to improving mental health outcomes for New Zealanders. I commend this bill to the House.

14:16

I move, That Government order of the day No. 20 for the second reading of the Plain Language Act Repeal Bill be postponed.

Government order of the day No. 20 is postponed to the next sitting day.

I present a legislative statement on the Constitution Amendment Bill.

That legislative statement is published under the authority of the House and can be found on the Parliament website.

14:17

I move, That the Constitution Amendment Bill be now read a second time.

This bill makes a small but important change to the Constitution Act to ensure that the post-election process is run smoothly. After the election, there’s a small period of time where there are no members of Parliament, which continues until election results are finalised and the new MPs take up office. During this time, the Constitution Act provides an exception to the rule that Ministers must always be an MP, to ensure the caretaker executive Government can continue to act during the post-election period. This is critical to our constitutional arrangements and the smooth transition of power. Currently, this exception is limited to 28 days.

There are a few circumstances where the conclusion of an election will be delayed—for example, an extreme weather event or a judicial recount. In these cases, the 28-day rule can expire before the new MPs formally take office, meaning Ministers can no longer hold their ministerial office, which can result in a constitutionally untenable position of the Governor-General being left without advisers. This happened in 2023, and while party leaders worked together to find a stop-gap solution, I consider a constitutional setting should have clear and fit for purpose rules. Therefore, this bill removes the 28-day rule and replaces it with one that does not give rise to the possibility that ministerial tenure will expire before the post-election period.

The new rule will allow Ministers to continue to hold office until the election writ is returned with the names of the successful electorate MPs and list MPs who have been declared. It means that if there’s a delay to the official vote count, incumbent Ministers remain in office until new MPs are appointed. I want to thank the Justice Committee for all their hard work on this, and I commend this bill to the House.

The question is that the motion be agreed to.

14:18

Thank you, Mr Speaker. It’s good to speak on this short but important bill. It is interesting that submitters weren’t absolutely in favour of this, and, certainly, there were some opinions that thought that it was constitutionally problematic for members of the executive, at least in New Zealand, to not be at the same time members of Parliament. This bill, of course, is aimed to address the situation where, as a result of an election and whilst the results are being calculated, a member of the executive has lost their seat. This was in fact the Hon Nanaia Mahuta’s situation.

Whilst the outgoing Labour Government was a caretaker Government in the true sense, the difficulty was that the Minister of Foreign Affairs wasn’t able to hold that office because she was no longer a member of Parliament, having clearly lost her seat, and therefore not being whatever the appropriate term is—there’s a technical term for someone who looks like they’ve won it but haven’t yet been sworn in, but she didn’t hold that position either. So she couldn’t hold her portfolio under the Constitution Act, and I think it might have been Chris Hipkins who held it for about seven weeks, in that situation. That’s a difficult situation because that new, essentially temporary, caretaker Minister doesn’t have any knowledge of the portfolio, doesn’t have the connections within the ministry, and certainly doesn’t have the international connections that were relevant to that particular portfolio.

So this bill does address that, and I do want to address the main criticism, which is “Well, that’s very odd that you’ve got someone who’s a Minister of the Crown who’s been voted out of an electorate or who has clearly not won a place on the party list.” I don’t think that’s a massive problem. Certainly, in other jurisdictions, members of the executive aren’t members of the legislature at all. The fact of the matter is that this is very much a bridging arrangement, so it’s a very short period of time—it’s not until the next Government is formed; it’s actually only until the final announcement is made and decisions are made as to which members are elected to Parliament. So it’s actually a very short period of time.

So, for that reason, we’re going to support this bill. It didn’t take long at select committee, but I do want to say that any change to the Constitution Act deserves careful scrutiny and good advice, and the submitters were of the highest quality, and so we absolutely did do that with this bill. Unlike some other very short bills, it didn’t get a cursory treatment; it got thorough treatment and careful consideration. So we will commend this bill to the House.

14:22

Thank you, Mr Speaker. The Green Party of Aotearoa New Zealand also supports this bill, and, as the previous speaker, the Hon Dr Duncan Webb, has said, I just want to preface this by reaffirming the importance of the Constitution Act, but also in terms of our general constitutional arrangements here in Aotearoa New Zealand. This bill specifically addresses this continuity around the executive, but I think it’s important for us to mention that as part of the submission process, we did get high-quality submitters who submitted on this particular bill—people who are experts in this field.

While the committee that considered this bill, the Justice Committee, is a very busy committee, they only had about 20 individual written submissions. It’s important to highlight some of the processes through that select committee which also helped shape some of the questions that we have for the Minister of Justice in the upcoming committee stage, because while we support this bill, it’s really important to have good engagement with the Minister and have certain positions of the Minister on record, which is separate from what we’ve heard in the select committee.

I want to address my first point, which is around our constitutional arrangements in general in terms of the executive but also the legislature. I think members of this House would clearly have experienced and know that, under our current system of MMP, which was introduced in the 1990s, when we get into a post-election period, we see a period of negotiation between different political parties to form a Government. Ostensibly, the only time under the MMP system that we had negotiations but also a majority was in 2020. The key there, then, is that there is this lull in the period between the election and a new Government being formed, which is where this bill comes in, and I’ll come back to the 28 days in more detail.

Most of the submitters that we heard during the select committee stage did voice their support for this bill. We had 19 submissions from individuals and one from an organisation, but then we did have a few people who opposed this bill, quite a few; we had 15 oppose this bill and four in support of it. But I do want to address some of the concerns people had with regard to their opposition to this bill.

I think it is understandable that there is general concern from the New Zealand public, currently, even with bills that have been introduced and have the support of the whole House, about whether this would be abused by a future Government. I think it’s important to note that the extension of 28 days is mainly to address a current anomaly in our constitutional arrangement, as opposed to any Government finding a way to extend their powers and be able to introduce certain things under a new Government. I think that’s a really important placeholder—more like a custodian role. The main reason for that is that it is absolutely crucial, under our current constitutional arrangements—being part of the British Crown and having a monarchy—that, ultimately, when we go through any bills in this House, we have Royal assent that goes through the Governor-General: the Governor-General must have advisers that do actually advise them on certain things. So without any Ministers, it’s really difficult for the Governor-General to also be able to undertake their role. So in terms of this particular part, we don’t see that being a huge concern.

I think it’s also important, as I did mention before, that we should really touch on the duration that we’re looking at, which is 28 days. We did question during the committee stage as to whether 28 days is the most reasonable length of time when we’re looking at the extension. This is to do with, specifically, aspects of sections 6 and 8 of the Constitution Act, which are clauses 4 and 5 of this particular bill. I think the 28 days is an important provision, potentially, to remove, mainly because of the fact that we have seen instances where, now, particularly under a more thriving MMP environment, sometimes the formation of a Government may take longer than that. So it is important for there to be a level of flexibility. So, again, as some of the advice that we received as part of the committee stage, we did consider this particular part. For example, as demonstrated in the 2023 general election, delays to the return of the writ can mean that new MPs take office more than 28 days after the election.

Other concerns that were raised by the submitters were around the commencement date, and this is bearing in mind that this was something that was considered a little while ago as well by the Justice Committee. At that stage, other bills were going through for things like the parliamentary term, things like the census, and also some of the electoral reforms. So with a whole swathe of electoral reform bills that were going through the Justice Committee—and were in the public consciousness, rightfully—some submitters questioned whether there should be a delay in the commencement of this particular part, just to anticipate other changes with some of the other legislation as well. The select committee was satisfied that the current commencement date, which is the day after Royal assent, is a reasonable one, mainly because this is an election year. I think it is important for us to complete this particular bill so it would be immediately applicable to the 2026 general election regardless of the outcome on 7 November.

One of the things that the Justice Committee did decide to alter is around clause 5—this is section 8 amended—and one of the reasons for that is because the exception to the Parliamentary Under-Secretary must always be an MP to mirror the rule for a Minister. A few of the submitters noted an issue with the drafting, because when we’re looking at this particular rule, they noted that the wording of the bill is not specific about the circumstances under which a Parliamentary Under-Secretary ceases to be an MP, which could result in the rule applying if a Parliamentary Under-Secretary ceases to be an MP for some other reason—they resign part way through a parliamentary term, for example. This is something that the committee did consider seriously and, as people would note in the amended version of the bill, the select committee has made some changes to ensure that there is clarification that Parliamentary Under-Secretaries are a part of this in clause 5 of this bill.

Finally, I think it’s important—as we kind of go into the progression of this bill through the committee of the whole House stage as well as through the third reading—as I mentioned at the beginning of this speech, to round up looking at the overall context that we’re seeing here in our constitutional arrangement, that, with a thriving MMP system, we may potentially see more and more of this happening; that, actually, in a healthy democratic system, it is OK for a Government—and maybe voters expect—that members and the elected officials take their time to ensure that they form a Government that is democratic and considers the best outcomes for New Zealanders on the whole. We also would like to see this sort of cross-party consensus when it comes to things like automatic voter registration. But, in this particular case, the Green Party does support the Constitution Amendment Bill.

14:32

Thank you, Mr Speaker. The Constitution Amendment Bill is supported across the House. It had a vigorous and in-depth select committee process and was well looked through. It’s a very sensible change to make sure our democracy continues to run smoothly and I commend it to the House.

I rise on behalf of New Zealand First to speak on the Constitution Amendment Bill. As has been traversed in the House, this is about common-sense practical solutions, which is exactly what New Zealand First stands for. It has been through a robust process. It is critical to deliver a stable Government moving forward after an election, so we commend the bill to the House.

The next call is a split call.

14:33

Thank you, Mr Speaker. It is a pleasure to take a call on the Constitution Amendment Bill. I do have a few points to make on this because it is an important constitutional change. It is really interesting that this is the second bill that we’ve had through the House recently that has looked to make sure that we have sustainable government despite potential emergencies. The first one that we debated earlier in this urgency period was the Emergency Management Bill (No 2) that looked at the continuity of Parliament if there was an emergency situation and the Parliament buildings were not able to be used, and so that’s progressing through the House and passed its second reading. This bill also mentions that one thing that may delay the return of the writ is a weather event or an emergency situation. That is very interesting and probably, slightly, a sign of the times.

As other members have said, we support this bill. I do support this bill, and I do think there was probably a greater opportunity to think about continuity of Government through an MMP lens, because this bill essentially maintains the existing executive through to the return of the writ, and so, when the next Parliament—I think we’re in the 54th—

54th.

It’s the 54th Parliament now, so if this bill passes, then the 55th Parliament would be when this current executive would officially end, and so they would retain their warrants as Ministers, and, indeed, the change from the Justice Committee, its under-secretaries as well, with this particular change, and the current situation, as we know, is 28 days.

We did have a situation last election where we did have a Minister who wasn’t returned to Parliament, and I understand that that created some problems in terms of continuity of Government. I wasn’t part of the Justice Committee when they considered this, regretfully, because it is a really interesting matter, and, as colleagues have said, any change to our Constitution Act should be considered in depth. But one of the things that I think would have been quite interesting to look at—and possibly might be a bit of a point against those who oppose the bill—is where we have elections in New Zealand. It is very, very rare that our three-yearly election will be on the last possible weekend that that election would be due to take place. Generally, it is some time before that. This year we will have a slightly later election, but I don’t believe it’s the last possible election date. If people are concerned about there being no democratic mandate for people to retain their warrant until the writ is returned, I think that’s probably not 100 percent accurate, because we do generally give a mandate to people to be elected for three years or until the next election, and, generally, that’s slightly under three years.

I do think in kind of a related point, which I do think is worth considering, is because we are having this election in November, which is a little bit later than we’ve had elections in other years, it does mean that the date for the next election can be pushed out slightly too. I think we’re kind of nearing into slightly dangerous territory with the commencement of Christmas starting quite early in New Zealand. Often we have Christmas parties in November, and people are off for the end of the year, and I don’t think it would be a positive move in our democracy to have elections any closer to Christmas, so just something to keep in mind there.

This is a small change. I think a broader change that would have allowed greater continuity of Government would have been, possibly, the maintenance of warrants until the new executive was sworn in. That possibly may have been less popular with submitters in the sense that I understand there were some concerns around democratic mandate, but that would have probably given the most amount of continuity. But, of course, that has to be balanced with the fact that we don’t obviously want a situation—and it is possible under a proportional system to have a situation where a Government, for whatever reason, can’t be formed. We had discussions around that last election. Would there need to be a second election if a Government couldn’t be formed? I don’t think anyone in the House would want that at all, so hopefully there’s a clear result in the change of Government at the election so that doesn’t need to happen. This is important.

The other thing that happens is Ministers are able to maintain not only their warrant but their terms and conditions as well, so they’re able to be paid as Ministers up to the return of the writ and then their notice period kicks in. I imagine, if those people had stood for election and not returned, then they would also have the three months’ notice. In terms of those individuals, that seems perfectly fine.

The other last point I wanted to make—I won’t use all the time for no reason—is the other jurisdictions do have appointed executives. We had that situation in the United States. We had a situation in Canada where we had the current Prime Minister, who was elected in their most recent election, actually became Prime Minister prior to the election taking place, and apparently that was a situation that could have happened in New Zealand up to a certain point where there was a change in our Constitution Act. So that’s another really interesting point, that democracies that we value, that are very close to New Zealand, like Canada, has had a very different situation in relation to the maintenance of executive power. Obviously, other countries like the United States have appointees that are appointed on the basis of skill.

It is important to have this continuity, and I think, reflecting on the way that New Zealand Governments have acted during the caretaker period, that no matter who has been in Government, it’s generally been extremely respectful of the more limited role that caretaker Governments do have during the election period. This will, I think, strengthen that slightly. It’s not a huge, massive change, but hopefully, as I said at the beginning of my speech, because we are living in uncertain times, it does give that extra level of certainty while still making sure that the return of the writ is the final day in which the previous administration can maintain that executive power, which, as we know in New Zealand—because we just have a single House—is quite extensive. I won’t take any longer, but Labour does support this bill and look forward to its passage through the House today.

Just as we get our sequence sorted out, I’m going to take a split call from the Green Party, and just to note the next call will go to the National Party, which is a full 10-minute call.

14:40

E mihi atu ana ki a tātou i tēnei, tō tātou Rāhoroi noho a te Kāwanatanga. Tēnā tātou.

[Greetings to all of us on this, our Saturday sitting of the Government. Greetings to us all.]

On behalf of the Green Party, I stand to support this piece of legislation. As we’ve heard and look forward to the committee of the whole House, this is a technical change to improve but also to provide continuity of Kāwanatanga in a time of transition at the time of elections.

Now, I want to recognise the submitters that provided feedback, of which there were 20 individual written submissions, as well as 19 of them being from individuals and one from an organisation, and noting that there were concerns, as mentioned previously, around allowing the Kāwanatanga to stay in power longer than necessary. We know that these types of contingencies are needed and that the 28-day rule could be prejudicial to providing certainty for those things that we need to do in a caretaker Government, as the transition might occur once the declaration of list MPs as well as electorate MPs is made, continuing on to the time of the writ.

The submitters who did provide comment on this legislation—and knowing that this is an improvement piece of legislation; there is no objection from within the House on it. But they did bring forth broader issues and concerns in the way with which we could make improvements to our constitutional arrangements and the way that Parliament configures itself: for example, reflecting this Act to bring forth Te Tiriti o Waitangi, the Treaty of Waitangi, within legislation more appropriately; examining—which we’re having discussions, of course, around—a four-year parliamentary term; and strengthening enrolment settings for the Electoral Act to facilitate participation.

Noting and thanking those members of the community who did participate, because this is a unique piece of legislation, one that helps us in providing stability in times of change but also the need for us to still have a process whereby community, whānau, and organisational voice can come forward. These are the things that are important in the way that we make decisions and inform lawmaking. That doesn’t happen all the time, as we’ve seen previously in other pieces of legislation, where they come through very quickly.

On balance, this small change will make a big difference. The way with which we might think of the 28-day rule is something that has been there for a long time. It’s important that we reflect the times but also provide the ability for Government to be formed, for decisions to be made, and then for the writ to proceed. On behalf of the Green Party, we tautoko this.

14:43

Thank you, Mr Speaker. I rise to speak on the Constitution Amendment Bill, which is to address the risk of a potential gap in the continuity of executive Government following an election. I commend this bill to the House.

The Constitution Amendment Bill is an important change to ensure continuity at election time. I commend this bill to the House.

The next call is a split call.

Thank you. It’s good to speak on the Constitution Amendment Bill. It’s really interesting to look at the detail of this and that the Constitution Act, as it is currently, only allows the Minister to continue for 28 days after they cease to be an MP. This bill will ensure that when there are delays in forming the next Government in the future, there is no risk to the continuity of Government. We all support a streamlined approach, and this will, indeed, streamline moving into the next Government more so than we have in our current legislation.

Interestingly, thinking about a caretaker Government and what a caretaker Government might do—as we saw in the previous election, that ministerial portfolio of our foreign affairs Minister was passed on to another Minister. I mean, it sounds like, OK, fine, that’s quite simple, but, actually, when you think about the detail, that’s not really that simple. The kind of administration and effort that goes into swearing in another Minister, even into a caretaking Government, is quite considerable, but also understanding the portfolio. The previous Minister has just had a bunch of time in that portfolio and has a deep knowledge—well, you’d hope would have a very deep knowledge—of that portfolio, and passing it on to someone else for a couple of weeks or however long isn’t that efficient. Also, the connections with stakeholders and the Public Service and ministries is an important aspect of that, and a person having to get their head around a whole portfolio to be in there as a caretaker for a couple of weeks before it goes to the next Government is not streamlined as we would have liked.

I saw, connected to this bill, in the previous Government, Chris Hipkins had to be sworn in again as Prime Minister before the National Government came in. That’s another sort of administrative aspect that isn’t necessary and won’t be necessary under this bill by extending it past the 28 days.

I listened to the other speakers and concerns from submitters—I didn’t sit on the select committee—around giving more power to a departing Government. I think that’s a good thing for us to look at: is this going to give undue power to the Government that is departing? But looking at the legislation and the precedent of a caretaker Government and the respectfulness that parties of all stripes have shown in the past, it feels like that won’t be the case and instead that continuation is going to be the priority. With that, Labour supports this bill.

14:47

I commend the bill to the House.

Thank you, Mr Speaker. It’s a pleasure to take a call on the Constitution Amendment Bill. As previous speakers have noted, what this does is ensure there’s continuity of Government following an election and following a potential change of Government.

At the moment, the Constitution Act provides that a Minister can continue as a Minister for 28 days after they cease to be an MP. However, if there are delays after that and a Minister hasn’t been returned as an MP, we have a situation whereby they cannot be sworn in again and continue to be a Minister. This specifically relates to the return of the writ. If the writ is delayed for any reason, if we have some type of crisis, some type of weather event, some type of pandemic—we’ve had these situations in the past, not, thankfully, around election time, but they have occurred and disrupted the ability of State organisations to do their job. There is that risk that if the writ is not returned, we have a situation where a Minister cannot continue to act as a Minister past that 28 days.

It’s worth just noting what happened last time, which was that former Minister Nanaia Mahuta was not returned as an MP, but she was only able to stay as a Minister for 28 days. What happened after that was that the new Government on the other side had not yet been formed, and so while that was actually unrelated to the return of the writ, it did mean that she could no longer operate as a Minister after that 28 days. If that delay hadn’t been caused due to formation of Government but had been delayed due to some type of emergency that caused a delay in the return of the writ, then that would have been a problem in terms of continuity of Government.

It’s interesting to think about what could happen when we have the change of Government in November. We could end up with a few Ministers who may end up being affected by a clause like this.

Really?

There could be a few. I mean, we could end up in a situation where the Minister of Finance may not be able to continue operating as the Minister of Finance after 28 days. We could end up with the person sponsoring the bill today, the Hon Paul Goldsmith, not being able to continue in his duties after 28 days. Mr Bishop, if Mr Bishop loses his seat and he doesn’t get back in on the list—because if people like Carlos Cheung or Vanessa Weenink win their seats, what that does is it means we end up with no list MPs in the National Party. We could have a situation where there are no list MPs in the National Party. Then what happens? We have no Minister of Finance, we have no Mr Bishop, we have no Minister of Justice. Do we even have a Mr Speaker, Mr Speaker?

I don’t have a crystal ball; I can’t tell you.

So there’s some very real risk for the National Party here, as we approach this Government. It could also affect the ACT Party, given that we could end up losing a few ACT Party MPs. Yeah, so we might end up in a bit of a strange situation where, you know, we don’t have a Minister of Finance.

A lot more NZ First MPs.

Goodness me—oh, NZ First. I think they might be getting a few more MPs, potentially. That’s sort of how things are looking. So I think they’re going to pinch some off National and ACT, potentially, at this election. So we’ll see, we’ll see. “Minister Arbuckle”, that could be a—Minister Arbuckle could get sworn in for a few days. There we go.

This is an important bill, though, because the continuity of Government is important. It’s important that the bills are paid. It’s important that if there is some type of emergency like a pandemic, like a war, that we end up entering into—any of these types of things—that we actually do have a Government that’s able to provide that stability when a change of Government is happening. We look forward to the change of Government on 7 November, and Labour commends this bill to the House.

14:51

I commend the bill to the House.

Kia ora, Mr Speaker. Thank you for this opportunity. In reflecting and listening to the contributions this afternoon, I looked at the two pieces of legislation that are being discussed. One is the Constitution Act of 1986, and the other is the Electoral Act of 1993. Both the pieces of legislation are Acts that pre-date MMP, which is 30 years old this year. Was 13 October, I think, 1996 the first MMP election? Things have changed since then. It is a different time, and in terms of the process of election night and the process, of course, of counting the votes, and then, of course, the party votes and trying to figure out and understand what the make up of the new Parliament looks like, it is quite different to what it was in 1986 or what it was in 1993, when it was a far simpler but, I think, a less diverse political system. Therefore, it is good that we bring this piece of legislation to the House this afternoon, to look at what we do and if it is fit for purpose, and we’ll be discussing it in the committee of the whole House stage.

As I was thinking about why we need to do this: one, of course, MMP has changed the landscape of what the Parliament looks like, and how long it takes to form a Government or a coalition Government. The second part for me was around looking at models around the world and how different it is. Of course, the Westminster system is very binary, and many of us—well, probably all of us in this House—might remember the morning after the night before of an election. You get that phone call from some random number saying, “Hello, congratulations, you’ve been elected. We’ve just booked a flight for you at 6.30 tomorrow morning. Please be ready to fly to Wellington.” So suddenly you’re on this flight the next day to Wellington and it’s all sort of, you know, a possum in the headlights kind of thing.

Whereas, you look at jurisdictions around the world—an example would be the United States, where they have their elections generally, or depending what cycle it is, but an example is the start of November. So an election is held for a member of Congress at the start of November, but then they don’t actually get sworn in. There’s not actually the transition until the start of January of the next year. So it makes it clearer, and there’s obviously time to make those changes, to put those things in place. We don’t have that here. It is, as I say, one night you win and then 48 hours later, or less, you’re actually down here in Parliament preparing to be sworn in and take up your office, what your area of the office may be.

We look forward to the committee stage and having some good robust discussion, making sure that this is small and simple and it is the right thing to do. But, obviously, as members of the Opposition, our job is to scrutinise and to ensure that the public feel confident that we have done due process to make sure that when it comes out the other end, this piece of legislation, when it’s enacted, is effective and will do what it says on the biscuit tin.

The Constitution Amendment Bill is set down for committee stage immediately. I declare the House in committee for consideration of the Constitution Amendment Bill.

14:55

Thank you, Mr Chair. I have a few questions which I’ll ask in good faith—they’re not trick questions; just to elucidate some answers from the Minister of Justice to, I think, probably clarify the intention of the legislation and its constitutional purpose. So just with the title, I understand from Standing Orders that sometimes when you have an overall question around the bill this might be an appropriate place to raise it.

We did have some concerns around this bill, in terms of the fact that after enacting this the executive, rather than ending 28 days after the election, could continue indefinitely until the return of the writ. So I just wondered if the Minister could perhaps assure the public that there are other checks and balances in place that mean that despite this bill, there is an opportunity for there to be regular elections and other constitutional checks that ensure that democracy continues. That is certainly my understanding, but I think, given the tenor of some of the submissions, as I understand, to the Justice Committee, it might be good to have that clarification made by the Minister, in terms of the fact that there was a singular date of ending, previously, in the Constitution Act, and now that there isn’t a definite date, although there’s a trigger point for that.

14:57

Thank you, Mr Chair. Just also on the title, and I think this is something that we have seen with some of the other titles that are brought in front of the House, where on a bill that has the kind of content which, literally, has constitutional significance, like the Constitution Act, often they could create confusions between what the public perceives as the Constitution Act and now the Constitution Amendment Act. I just want to check with the Minister if any consideration was given on how that could be clearer. Obviously, we’ve seen multiple Acts or bills that go through the House that have the inclusion of a bracket, which makes it a little bit more, I guess, visible to the general public and those who are interested, that it’s referring to a specific thing as opposed to without such additional identifiers as a bracket.

The other thing that I also want to check with the Minister, and I’m assuming this is going to be, hopefully, just a miniature update, noting that we’re no longer in 2025—so whether this will be automatically updated to reflect that it is 2026. So those are my two questions to start with, and I’m noting that my colleague Camilla Belich and her questions are quite pertinent. I do have questions around that, but I’ll leave it to a later clause.

14:58

In relation to the first question, which I couldn’t connect with the title, but, nevertheless, I will endeavour to answer it, all this bill does is, rather than 28 days after the election being the trigger point, it is when the writ is returned. Now, that might be 29 days or 30 days, but it doesn’t change the overall checks and balances in our system at all. They remain as strong or as weak as they were before the bill and are not changed by the bill.

In terms of Mr Xu-Nan’s comments, I struggled to make any sense of them. So maybe he might elucidate it again.

Taking up that invitation, Lawrence Xu-Nan.

14:59

Absolutely. I was hoping that—you know what? If we had the Plain Language Act Repeal Bill, then maybe that would have been a little bit clearer. So my question is: is the title sufficiently different enough from “Constitution Act” for it to be made clear? My second question is: will 2025 be updated to 2026?

15:00

Well, in relation to the second point, I imagine it will. In regard to the first element of it, I think the Constitution Amendment Bill says what it means, which is that we’re amending the Constitution Act.

Thank you, Mr Chair. Noting that the commencement is the day after Royal assent, I want to check: originally, this bill was reported back to the House, I believe, at the end of last year, or even the beginning of this year. It’s been a little while ago, which is why, I think, that Steve said 2025 and not 2026, because we were supposed to pass this last year. Despite the fact that it’s the day after Royal assent, is there sufficient time for elements of this bill to take effect?

15:01

Yes.

Can I just check from you if the Minister is also taking directions from the Government side in his response?

Oh, I think the Minister is experienced enough, probably, to be his own man in the chair.

15:02

Thank you, Mr Chair. This is probably one of the more substantive clauses of this bill, and enacts, essentially, the purpose of it. I did check back to the Electoral Act and the sections of the Constitution Act that they’re amending, and it appears to me that they look like they’re in order. Hopefully, my colleague Dr Lawrence Xu-Nan has also checked, and he will raise any questions that he has on that at the time. I mean, we are here in urgency discussing a bill—even though it is minor—of constitutional significance, and so it would be appreciated if the Minister of Justice could engage with answering what are serious questions and not ask to simply delay it.

There is a change in this bill which means that, rather than 28 days after an election, the executive can continue—as I read it, and please correct me if I’m wrong, Minister—indefinitely until the return of the writ. Some assurances around that, I think, is a legitimate question to ask, which we didn’t hear a response to.

The other questions I have in relation to this bill: if you read the cover note on it, which I know is not part of the bill, it talks about recounts and electorate seats. I did have a bit of a think about how this worked, and my understanding—I’d appreciate, if this is not correct, that this could be clarified—is that the relevance of electoral candidate recounts in relation to the list, which is listed here, and there’s a definition of “list candidate” in new section 6(3), inserted by clause 4, the relevance of the recounts is that, if there is a recount in an electorate seat, the list cannot be determined until the recount has been completed. So, even though the cover note talks about recounts in electorates, it’s obviously the common area to have a recount when you have an electorate vote, whereas the list is obviously over the entire country, and it’s a little bit more difficult to do a full recount of every single booth in the entire country.

The relevance of the electorate seats is that, if there is a recount, then the list can’t be finalised, and the list being finalised is, as I understand, the trigger for the final writ to then be issued and the members of Parliament to be determined. I’d appreciate some confirmation that that is correct, because when you read the cover note and the bill, it isn’t as clear as it could be, but I think, probably, that that is the place to do that.

I do have another question which I might just raise now, which is around whether the Minister thought to consider any advice around caretaker principles at all during that period of time. Obviously, we are talking about a period of time where there has been a general election and prior to a new executive being sworn in. By its nature, that would lend itself to being a caretaker period. That is, I understand, governed by the Cabinet Manual, but, obviously, if there was going to be any legislative change to that or a re-assertion or a codification of that need for the caretaker principles to be in place during that period of time—whether the Minister considered that that might be something to include in this bill so that it was clear the manner in which the executive continued in office, because that is the subject of this bill.

15:06

In answer to the last question, no, I didn’t consider changing or legislating differently for the rules in relation to the caretaker period because the bill doesn’t change it in any way. It does, yes, potentially prolong that period for a number of days if there is a very unusual and unexpected event that delays the announcement of the writ or the declaration of the writ, but, I think, as a country with the potential question marks over the 1984 election and behaviour following that, since that period, there has been no real issues that I can recall from caretaker Governments acting in a way that was at all controversial. I think this country has a good system in place and a good understanding, and so I didn’t give any serious thought to changing that in any way, shape, or form in relation to this legislation.

As regards the first point, why it’s linked to the declaration of the listing fees: yes, that is the final piece of the jigsaw before the writ can be declared, because the outcome of an electorate seat going one way or the other will have implications for the list, because it’s the overall percentage of the votes that are determined by the listing, so the interaction between electorate seats and list MPs is the final piece of the jigsaw.

15:07

Thank you, Mr Chair. I’ve got a couple of questions for the Minister of Justice on clause 4, as well. I think one of the first questions is something that we were seeing addressed earlier, but if the Minister wouldn’t mind providing further elucidation. The submitters were worried about the kind of decisions that the caretaker Government Ministers would be able to make. It was alluded to in the report that this is something that is currently covered under the Cabinet Manual, but if the Minister wouldn’t mind just highlighting what are some of the, I guess, limitations that a caretaker Government is able to make in terms of making such decisions. I think that would be helpful to have on record but also for the public and for those who are submitting on this to be reassured by those limitations. That would be my first question.

Following on from what my colleague Camilla Belich mentioned in terms of the list candidates, I think one of the things I want to check with the Minister—and, again, I’m not our electoral reform spokesperson, but I’m interested to know what happens in the event of a by-election. We have an example from the 2023 election, particularly with the Port Waikato seat, where a by-election was triggered roughly around the same time as a general election. If someone who was in place at the time who then wasn’t elected and ceased to be an MP, how would they be captured under this particular clause, if at all?

My final question for this contribution is around the changes to clause 4(1), inserting replacement section 6(2)(b). Currently the wording is, I believe, “until the expiration of the 28th day after the day on which the person ceases to be a member of Parliament”. Now, I know that a lot of the things we’re doing are also precautionary in nature, but I do want to check, except for a few examples, as mentioned, that that, to my knowledge, hasn’t happened recently. So the question I wanted to ask—which hasn’t been tested recently—is: if it’s until “the close of the day after the day on which the Electoral Commission declares,” what then happens in those 24 hours, or potentially longer, from when the Electoral Commission declares until the next day? How does having that extra 24 hours work in this case with regard to our now having declared elected list candidates, but the people are still in their custodial ministerial positions for another 24 hours? According to how it’s written, there might be additional considerations that I’m not aware of, but I wanted to check with the Minister.

Just a point of order, Mr Chairperson. I just wanted to check. I know that a lot of these sections might seem quite small, but it would be good to get engagement from the Minister. But if the Minister is still seeking advice, we will be able to just cover some of that in future parts.

15:11

Thank you, Mr Chair. I do have a question that could sit into the next clause, which is what I was considering waiting for, but seeing as the Minister of Justice is getting advice, I’ll ask it here.

We do have an issue in New Zealand where, during the period of time between elections, we don’t actually—as I understand it—have a Speaker. A Speaker, obviously, has control of the Parliament Buildings and they have quite a lot of jurisdiction in relation to that, and so I wanted to ask the Minister whether he had considered including the Speaker—I’m assuming they’re excluded as they’re not a member of the executive—in some of these provisions in order to ensure that continuity.

No, I didn’t.

15:12

Thank you, Mr Chair. I understand that this is the last bill in urgency, but it would be good to have some constructive engagement. I know that the Minister of Justice has the officials here, and I want to acknowledge the officials, who are here on their weekend. It may be Tuesday here for us, in Parliament, but for the rest of the world, it’s Saturday. I know that they have a lot of knowledge in this area, and so I’m sure that if the Minister wishes to get some advice, he will be able to do that and it will be very good advice.

To the questions I have in relation to clause 5, firstly, this was substantively changed by the Justice Committee, and I wanted to ask the Minister whether he agreed with the changes in relation to Parliamentary Under-Secretaries. I have a genuine question. I haven’t had time to check it prior to now, but I understand that a Parliamentary Under-Secretary isn’t a member of the executive, and I want to just clarify that, because that seems to bring other people into it, which is why I was going to ask about the Speaker in this question, as well.

The other question I had is this. We seem to have a situation here where a list candidate is defined in section 3(1) of the Electoral Act, but this is included in this bill, both in new section 6(3) in clause 4, which we’ve just concluded our debate on, but also in new section 8(4) in clause 5. I just wanted know whether, from a drafting perspective, it is necessary to have those two, essentially, identical provisions, which are only referring back to the exact preceding provision in the reference to a list candidate. But it is in fact the same definition.

15:13

Thank you, Mr Chair. I just also note, like my colleague Camilla Belich has said, that while this is a bill that we all agree on and it is a reasonably small bill, it does have quite an important role and it holds constitutional significance. We’ve asked quite a few questions on the last clause and we’ve heard very little from the Minister of Justice regarding engagement. But I can see that the officials are, obviously, here and are providing additional information for the Minister, and so if the Minister wouldn’t mind responding to our questions, that would be appreciated.

For clause 5, I wanted to check with the Minister in terms of what the Justice Committee has agreed to update in this new section 8(3)(a) in clause 5, which is around a Parliamentary Under-Secretary continuing to hold office during the period “beginning on the day that they must vacate office as a member of Parliament” under various parts of the Electoral Act. This does, I guess, in some ways tie in to what Camilla Belich mentioned previously regarding the Parliamentary Under-Secretary being in this weird, limbo role between being both in the executive and not in the executive. I wanted to know why that particular provision doesn’t apply, for example, to Ministers of the Crown. For example, do Ministers of the Crown also then have to do that, beginning on the day that they must vacate office as a member of Parliament, under those particular sections. So if the Minister wouldn’t mind, do let us know what the difference is between Ministers of the Crown and Parliamentary Under-Secretaries.

15:15

Thank you, Mr Chair. In answer to Ms Belich’s question around whether I agree with the amendment which includes Parliamentary Under-Secretaries, yes, I do, and the Government does. It hadn’t been included in the Constitution Act originally, and it’s not an earth-shattering change. Ultimately, it was the Ministers and the executive that were concerned about ensuring that we have Ministers after the 28 days, if there is an issue. But it doesn’t hurt to have Parliamentary Under-Secretaries, as well, and so we’re including them in order to be consistent across the way that the arrangements are in place. So, yes, it wasn’t included; yes, the Justice Committee considered it and recommended it; and, yes, the Government of the day agrees with it.

In terms of the question around whether or not the drafting refers back to the clause before, my advice is that the Parliamentary Counsel Office—which is the part of the Government that drafts these bills—has said that it was necessary for clarity.

15:17

Thank you, Mr Chair. I just wanted to check with the Minister of Justice whether the Minister also has the response to what we’ve asked, or, particularly, to what I’ve asked in terms of—let alone that there are still questions outstanding from the previous clause. But in terms of this particular clause—specifically, new section 8(3)(a) in clause 5—I ask whether that particular provision applies only to Parliamentary Under-Secretaries, or should it also be applicable to Ministers of the Crown.

Noting that the Minister is just seeking some additional advice, I do want to check this with the Minister, as well, as a part of this is around the purpose this bill in the sense that it is mainly so that the Governor-General is able to have advisers. From what the Minister said before, which was that it was nice to have Parliamentary Under-Secretaries as part of this, I’m just also checking that Parliamentary Under-Secretaries also, in some ways—maybe via a Minister—also advise the Governor-General.