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Legislative Assembly for the ACT: 2000 Week 3 Hansard (8 March) . . Page.. 669 ..

MR HUMPHRIES (continuing):

Is no child born a criminal? Perhaps not, but some children undoubtedly have a genetic legacy which is very damaging to their prospects of escaping from criminal behaviour in later life. That is why this Government, when it introduced mental health legislation more than a year ago, argued for some alternative responses to the criminal justice system where people were clearly fully mentally incapacitated. It argued for some alternatives to putting people into the criminal justice system. As I have said, we may have to return to that issue in the future.

MR STANHOPE (Leader of the Opposition) (11.45): The Attorney has raised the status of the debate in New South Wales in relation to the rebuttable presumption. I have to admit that I am not 100 per cent certain of the approach of the New South Wales Government to the debate in New South Wales about the proposal to lower the rebuttal presumption age from 14 to 12. My understanding - I am prepared to be corrected - is that the stage reached in New South Wales is that the New South Wales criminal law division of the Attorney-General's Department has issued a discussion paper entitled "A Review of the Law of the Age of Criminal Responsibility of Children". I understand it is restricted to the prospect of reducing the age at which the rebuttable presumption kicks in.

The proposal for law reform that accompanies the discussion paper that was issued refers to the fact that over the past two years the criminal law division had sought submissions on doli incapax from relevant organisations and individuals. The discussion paper that was issued by the Attorney-General's Department distils the issues raised in the submissions. My understanding was that the New South Wales Government had not pre-empted the work of the department in relation to the review of the age of criminal responsibility but was certainly facilitating a debate and was prepared to propose for debate and discussion whether or not it might be appropriate to reduce that age. That is my understanding of the situation in New South Wales, but I might be a little bit out of date on that and I am prepared to stand corrected.

I conclude my remarks by referring to the last comment by the Attorney, which I find quite interesting. He suggested that there may be a genetic link between criminality - - -

Mr Humphries: In some cases.

MR STANHOPE: In some cases. It is a very interesting concept, one I find a little bit worrying, but I note that the Attorney raises it in the context of appropriate responses to people with mental illness. My thinking on that, intuitively, would be that if, as a result of a certain mental incapacity or a certain mental disposition or disability, a person engaged in criminal behaviour, the question to be considered is whether or not the mental capacity, disposition or disability contributed to the capacity of the individual to know whether or not what it was that they were doing was criminal or whether or not they had a capacity to control their behaviour.

I am always a little bit disturbed to hear suggestions that a person's genetic make-up is responsible for their criminal behaviour, but perhaps that is a debate for another day. It is the sort of assertion or assumption that leads us down some very dangerous paths in relation to assuming that certain individuals are, as a result of their genetic structure, more

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