Page 623 - Week 02 - Thursday, 17 February 2005
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unnecessarily splattered across the media for its own purposes or talked about in situations where the person would not benefit.
MR HARGREAVES (Brindabella—Minister for Disability, Housing and Community Services, Minister for Urban Services and Minister for Police and Emergency Services) (5.17): The government will be supporting Dr Foskey’s amendment and thanks her very much for it. This amendment requires a presiding judicial officer to consider closing the court while the defendant’s mental fitness to plead is being considered. It is not an absolute direction to close the court. The hearings under the present system are heard in closed session before the Mental Health Tribunal. This amendment allows the court at its discretion to continue that practice. The government supports it.
MR STEFANIAK (Ginninderra) (5.18): I know that the amendment will go through, but I note firstly that it really is unnecessary in that courts have wide-ranging discretions to, if asked, close the court for a defendant’s privacy, for a witness’ privacy or for any other reason and to do any other number of things in what they think is in the interests of justice. I will tell you a little story about that later which shows just how complete that discretion is for a court. Remember that courts invariably will do their utmost to ensure that the rights of an accused are protected. In fact, in the ACT they probably bend over backwards and go a bit too far sometimes in doing that, but one can never accuse them of not having primary regard to doing the right thing and ensuring that the rights of any person accused are adequately looked after.
I have a slight concern with the word “must”. I am concerned that a court will feel that, because of this provision in the legislation, whenever this is simply raised they must, having no regard for anything else, close the court. I note what the attorney said in his speech, which would indicate one of the main reasons we are actually passing this legislation today:
Our system of government designates the judiciary as the institution that applies the law equally, impartially and openly.
“Openly” is very important. Also, when talking about the Mental Health Tribunal and why it is no longer the appropriate body, he said:
Fitness to plead is determined by advice to the court from the Mental Health Tribunal. Just as culpability is tested by the court, I believe fitness to plead also should be tested by the court.
Although there are mechanisms to enable the Mental Health Tribunal to hold open hearings, it is rare for the process to be open. Closed proceedings are the right process for people in need of treatment but the wrong process to determine an important procedural matter in a criminal trial, namely, fitness to plead.
He also said:
I believe that most of our community has confidence in the impartiality of our magistrates and judges. The judiciary’s impartiality is there for all to see because the trial process is open and the judiciary has demonstrated its strength to judge impartially.
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