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Legislative Assembly for the ACT: 1998 Week 10 Hansard (26 November) . . Page.. 3048 ..

MR MOORE (continuing):

from a range of health and community service providers. In such cases, a senior public servant will be responsible for coordinating the service care plan and ensuring that the required services are provided as arranged. This person will also be responsible for determining when the person subject to the order no longer meets the criteria for a community care order.

These orders will, in most cases, be served within the community. In some cases the tribunal may also impose a restriction order where some form of additional restraint is considered necessary to protect the community. A restriction order may require a person to keep away from a person or place, refrain from undertaking specific activities or be detained in a particular place. A restriction order cannot stand alone. It must be accompanied by either a psychiatric treatment order or a community care order. The tribunal will only make a restriction order where it is satisfied that, in the interests of public safety, the person should not be discharged from such an order unless the tribunal has revised the order.

In extreme cases, where a person continually refuses to comply with an order and the tribunal is concerned about significant potential danger posed by the person subject to an order, the tribunal may refer the matter to the Supreme Court for the making of a preventive detention order. This would only occur where a person refuses to comply with an order, the tribunal is satisfied that the person poses a significant risk to the community, and there is no evidence that treatment or care in any form can be provided to lessen the risk.

A preventive detention order would be sought in only the most serious of cases where there was considerable concern for public safety. The detention of a person who has not been charged with a crime and is not being detained for the treatment and care of a mental illness or mental dysfunction is an extremely serious proposition. However, the Government accepts that there may be some very rare cases in which preventive detention may be the only option available to protect the community from a very real and significant threat.

The Supreme Court would be required to review the initial preventive detention order within three months of its application. The order could then either be revoked or extended for further periods of up to six months at a time. While this seems severe, I do not envisage the need to use these provisions regularly in the ACT. Victoria has a similar provision. In four applications to the Supreme Court of Victoria for a preventive detention-type order over the last few years, the Supreme Court has yet to make a preventive detention order. I believe our Supreme Court will be at least as diligent as the Victorian court in ensuring that the detention of a person on other than criminal, mental illness or public health grounds is only enforced where a person is a clear and present danger to other persons in the community and there is no evidence that treatment or care in any form can be provided to lessen the risk to the community.

There may be some negative comments from the public in relation to this provision. However, under the current Act, preventive detention is available, although it is not so clearly enunciated. By including direct references to this form of detention the Government is ensuring that its intentions are totally transparent to the community.

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