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Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4131 ..

MR STEFANIAK (continuing):

In this bill the defence that a person could not control their conduct is open to abuse. As the Victorian commission stated, it would be very easy for someone to run that defence and somewhat difficult to show that they were running a spurious defence. The bill, without this paragraph is fine. It is what applies in Victoria. It is accepted law. This criminal code, replicates a lot of good accepted law that has served us well for many decades.

We are opening a Pandora's box. It is far preferable to delete paragraph (c), and I would urge members to do so.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Health, Minister for Community Affairs and Minister for Women) (4.58): The government does not support the arguments put by Mr Stefaniak or the amendment proposed by him. The government's position is that it is desirable that we retain paragraph 28 (1) (c), which Mr Stefaniak proposes be removed.

Mr Stefaniak, in support of his proposition, referred to the Victorian legislation and said, "This is how they do it in Victoria. If it is good enough for Victoria, it is good enough for us."The contrary point might just as well be made, Mr Stefaniak. Almost every other jurisdiction in Australia has adopted the formula which is in the code here. It is the position adopted by the Commonwealth, the Northern Territory, Queensland, South Australia, Tasmania and Western Australia.

In looking to Victoria for a precedent to support your proposal, you ignore six other jurisdictions that believe that the third arm-namely, that the person could not control the conduct-is the wisdom that applies to issues around mental impairment and criminal responsibility.

I understand the position you put, Mr Stefaniak. I am aware of the argument. To some extent, it reflects a more traditional notion of the insanity defence and the M'Naghten rules. Under the M'Naghten rules a person cannot be held to be criminally responsible for an offence if they did not know the nature and quality of the conduct or they did not know that the conduct was wrong. That is the standard formulation of criminal responsibility.

In relation to people with a mental impairment, it is proposed in the code that we take an extra step and say "or a person could not control the conduct". Your concern seems to be that this is a further exception open to abuse.

At 5.00 pm, in accordance with standing order 34, the debate was interrupted. The motion for the adjournment of the Assembly having been put and negatived, the debate was resumed.

MR STANHOPE: We need to go back to the basics in relation to this provision. It is important that we not look at this in the context of a person rocking up and saying, "Yes, I did that, but I could not control myself. I could not control my actions. I could not control my conduct."The person who claims that defence has to be suffering a mental impairment. You have to prove to the court that you have mental impairment. The first element of proof required to sustain the defence is that you have a mental impairment.

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