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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1163 ..

prosecution is not required to prove the mental elements of the offence, nor should it, nor was that ever intended, but it seems that, because of this court decision, a big problem has been created. So the Attorney has inserted the term “engage in conduct”. This term is derived from the existing definition under the Criminal Code 2002 and includes only the physical elements of the offence, which I thought quite clearly was all that was intended, but it seems the court went off on a tangent; hence, this particular amendment is being made.

The opposition is very happy to support this bill. I think it is a step in the right direction. A number of people—people who have been badly traumatised by serious crimes which had mental health and fitness to plead elements raised—who are victims in our community will be very happy to see it introduced. This bill is a welcome addition to the statute book. It is certainly something the DPP and I have been keen to see over the last few months. This should not be the end of the matter. A lot more work needs to be done in this area to ensure that justice is done. This bill is a very good step in the right direction and is welcomed.

MS TUCKER (10.11): The Crimes Amendment Bill 2004 (No 2) is intended to fix up a few problems identified in recent cases around the way that someone accused of a criminal offence may be excused from standing trial owing to mental illness. This is a difficult issue. We need to balance very carefully the fair and just treatment of people with a mental illness as well as the interest of fair and just investigation and accountability for criminal actions, particularly for things such as murder.

A special hearing system already exists, although it is generally agreed that there are some problems with it. In fact, I understand that a review is being conducted around fitness to plead and is expected to report soon. You have to question, then, making a law in such an ad hoc way, the difficulties posed by recent high profile cases notwithstanding. Of course there are some very big problems with the way we treat people with mental illnesses in the criminal justice system. The Mental Health Tribunal seems to be struggling with the information that it does or does not get from mental health services, the courts and advocacy groups are concerned that detaining people suffering from a mental illness in the remand centre is not appropriate, while releasing some people into the community may prove to be a danger to themselves and to others.

As the government is trying to move towards restorative justice, the issue of mental illness must be integrated into the process. There is at present a departmental committee into mental health looking precisely at how to deal with people with mental health problems who are caught up in the criminal justice system. In the meantime, however, we seem to be dealing with things on a case-by-case basis.

This bill proposes several changes. The first the Greens can accept—that is, that a special hearing should not mean that, if the mental illness passes and particularly in the situation that there was not a mental problem at the time of the offence, the prosecution cannot be brought back on. It seems unreasonable on a number of grounds for someone who may have committed a crime to be free from prosecution because at a later date they suffered an episode of mental illness that found them unfit to plead. Clearly, for victims of the crime and for society at large, we all ought to be held accountable for our actions insofar as we are responsible for them.

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