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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1164 ..

Also, there is a perverse discrimination at play. If we argue that, because a person is at some time unfit to plead they are forever unfit to be held accountable for their actions, it is, in effect, a presumption that mental illness is a permanent and unalterable state. Those of us who live with mental illnesses in our lives or with our friends or families can testify that nothing is as cut and dried as that and that one can certainly be healthy and capable at some times yet not at others. Consequently, we support the review provisions of the bill which amend the Mental Health (Treatment and Care) Act so as to provide for abuse of people found temporarily unfit to plead, and also in the case of more serious alleged offences for people found unfit to plead more generally.

I note, however, that there are provisions in other jurisdictions for some statute of limitation to apply in these less temporary conditions. I understand that the general approach is one that the maximum sentence for the alleged crime is a guide for the appropriate statute of limitations. It is unfortunate that there is no such provision in this bill. As it was only introduced last week and we are debating it now, I have not had the time in my office to explore the issue in more detail and put forward an amendment myself. Consequently, I can only flag that this seems to be an oversight in a fairly rushed bill. There are other details I would like to examine more carefully, but time in this case prevents me. Indeed, the scrutiny of bills committee also made the point that it was hampered by the little time it had to examine the proposal.

Some issues were raised in the scrutiny of bills report which the government addressed in an undated letter by referring to a revised explanatory statement which is not on the website. There is an issue of rights that the scrutiny of bills committee did not refer to which I will address and there are a number of clauses in the bill that I will oppose as a consequence. If this bill is passed, magistrates will not be able to consider the mental element of an alleged crime at a special hearing. However, the verdict of such a hearing could either be an acquittal or a non-acquittal, and so the accused person finds himself before a court in a condition in which they are not only not fit to plead but also not entitled to invoke the mental component of their action in their defence.

It is certainly conceivable that someone could be charged with the serious crime of injury or manslaughter but is unable to argue self-defence. If arson were the charge—the accused person was perhaps living without electricity and accidentally knocked over a candle—they would presumably still be found to have engaged in the conduct required for the offence. By taking the view that the mental element cannot be considered, the accused is denied a legitimate defence. I understand that there might be some complexities about providing a defence for someone who is unfit to plead and that a guardian would need to somehow be appointed. These are questions about how they ought to run a defence but none of that is more complex than other issues of law and mental illness and is not insurmountable.

So it does seem that this bill is limited and dangerous in some of its implications, that it certainly would appear to infringe on the rights of people suffering from mental illness and that such limitations are merely a consequence of too much haste, driven perhaps by an unusual decision or two in the courts.

MS DUNDAS (10.16): I would like to start by commenting that I am incredibly unhappy that this bill is being rushed through the Assembly. I have not heard any good reason

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