Joe O'Toole (Independent)

This is the same point I asked about before but I am still not clear on it. The constitutional position is that the law protects habeas corpus. The law required the consultant to exercise discretion. This section states "An unexpired renewal order shall be deemed to be valid and always to have been valid". We are saying effectively that if the fail-safe which the law was required to put in to protect the habeas corpus section of the Constitution was not followed, this is okay. We do not have the power to do this and we are challenging the Constitution on that basis. I am not clear about it.

It is not just the fact of not having enough discretion between three months, six months, nine months or a year. A consultant may not exercise discretion at all and could sign the form without going through the other processes. I asked a question of the Minister which she did not get a chance to answer. It was sections 15 and 16 of the Act to which I was referring rather than section 28. Those sections require the three steps to be taken five days before the order, on the issuing of the order and 24 hours after the order. If those three steps were not carried out in all cases, it could be argued discretion was not discharged and we would be here trying to plug what was not a legal gap but a constitutional gap. We cannot do that.

This is important and I disagree with Senator Feeney. I grew up all my life knowing of cases of people being committed to psychiatric hospitals involuntarily with many outstanding questions. I can remember cases where it was said people were committed incorrectly. When this legislation was being put through, it was done to ensure such actions could not happen in the future.

It is very important legislation and although I do not argue with the actions of the Minister, can she say it "shall be deemed to be valid and always to have been valid"?