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Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4070 ..

MS TUCKER (continuing):

I will not discuss every part of the code now. I have, as far as possible, considered elements of the bill that may be of concern, and in those cases consulted people with legal expertise to assist me; and, of course, I have referred to the report of the national Model Criminal Code Officers Committee. That report indicates that committee members went to great efforts in their deliberations to consider input from state and territory case law, practice, and law reform investigations, and also issues raised in submissions. But I cannot say with certainty that this is the very best formulation. I have some quite serious concerns about the chapter 4 offences-with the breadth of sabotage and with the computer offence of possession of data with intent.

The first section, which is the core of the criminal code, deals with the new principles of criminal responsibility. I have a remaining concern that the new part of the definition of mental incapacity may catch too many situations. The mental impairment definition goes beyond our current common law definition, with paragraph (c) specifying that the person could not control the conduct. It has been suggested to me that perhaps under this clause a paedophile could defend himself by claiming that he-and it usually is a he-could not control his conduct. I will be seeking some further advice on this point.

The definition of mental impairment implies a different analysis than that in the Mental Health (Treatment and Care) Act. For this reason, these provisions will not come into force for some time. But that does beg the question: why now? Why not do the work to resolve these differences before we pass this into law? Since the government is intent on proceeding with this enactment now, we will be watching and urging them to do careful work, with enough time being made available for careful consideration by people who will be affected by these changes.

The model used in the code and this bill leaves assessment of the criminal importance of mental illness in each particular case substantially to the jury. This avoids problematic lists of specific types of mental illness, about which there is always some controversy and different schools of thought. The officers committee notes that this has left a moral question rather than a medical question-a jury "should be allowed to consider whether, for example, a defendant's severe personality disorder prevented him or her from knowing the wrongness of the conduct". This decision accords with the broad definition of "disease of the mind"under the M'Naghten Rules (page 37, chapter 2). The committee explains, however, that the disease of the mind concept under M'Naghten has caused great difficulties, and has gone for the inclusory model, as suggested by the Victorian Law Reform Commission.

I have remaining concerns about the haste with which we are instituting the changes to property offences. There are still a few things that seem very strange. Clearly the government is not concerned, so I will not be calling for a division to attempt to remove it this time.

I will conclude with this example: section 118 (3) states that a person can be found guilty of the offence of possession of data with intent to commit a serious computer offence even if committing the serious computer offence is impossible. I believe that this extends criminal responsibility beyond what we previously had in place.

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