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Legislative Assembly for the ACT: 1999 Week 4 Hansard (22 April) . . Page.. 1127 ..

MR HUMPHRIES (continuing):

make its best estimate of what imprisonment term would have been imposed in the particular circumstances and then restrict any order for detention of the accused to a period not exceeding that term. Amendments to the Mental Health (Treatment and Care) Act to be introduced by Mr Moore complement these provisions.

It must be conceded that some people will remain mentally dysfunctional or mentally ill for a period longer than the limiting period during which they may be detained pursuant to Part 11A. However, if a person's mental condition justifies continued involuntary detention, such continued detention should be as a result of civil proceedings authorising the detention of the person, not simply that the person was initially detained due to having come into the criminal justice system.

A further amendment made by the Bill will enable the Supreme Court to order a person in respect of whom an issue of fitness to plead arises, once he or she has been committed for trial, to submit to the tribunal for determination of his or her fitness to plead. This may be ordered without having to wait until a jury has been empanelled and the trial is under way. This is an important provision with the potential to avoid wasting the time of jurors and others involved in Supreme Court proceedings. For the same reasons the Bill will enable the Supreme Court to discharge a jury which has been empanelled, having regard to any anticipated delay in the tribunal advising as to the accused's fitness to plead.

The Bill makes a number of important changes giving the Magistrates Court greater flexibility to deal with defendants suffering from mental dysfunction or mental illness. A key change to the legislation is the inclusion of provisions enabling the Magistrates Court to require that a defendant who appears to be mentally dysfunctional or mentally ill be assessed to determine whether or not the person requires treatment or care. These provisions will ensure that the Magistrates Court is able to have such a person conveyed to a health facility for assessment. If the person is assessed as requiring treatment, the person will be able to be treated but will only be able to be discharged into the custody of a police officer.

At this point one of three things will happen pursuant to the court's order. The defendant will be admitted to bail by the police; the defendant will be held in custody by the police, to be taken as soon as practicable back to court for the court to make a decision on bail; or the defendant will be considered by the police for a grant of bail against the Bail Act provisions.

The structure of these provisions recognises that the court needs a mechanism to have people assessed and provided with treatment, if it is required, but existing Bail Act provisions are insufficient to achieve this. There is clearly a serious doubt as to the capacity of people thought to be mentally ill or mentally dysfunctional to enter into bail conditions to seek assessment or treatment. The legislative scheme proposed allows for deferral of the granting of bail or the making of a decision whether to grant bail until after the person has been assessed, given emergency treatment if necessary and released or discharged.

The Bill will extend to the Magistrates Court powers similar to those of the Supreme Court to deal with accused people in respect of whom the issue of fitness to plead arises. This will mean that it will be possible for the Magistrates Court to make

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