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Legislative Assembly for the ACT: 2004 Week 3 Hansard (11 March) . . Page.. 1168..


MR STANHOPE (continuing):

The bill also provides for a range of other minor and technical matters that improve the current system, which are outlined in the bill's explanatory statement. As I have previously indicated, this bill addresses only those amendments identified as requiring urgent attention. There have been a number of criminal cases in the past 12 months that have highlighted some of the difficulties being experienced in the current system with the interaction between the criminal justice and the mental health systems.

These issues are complex and pose a significant challenge for the justice system. You will recall that, late last year, I announced a detailed review of the operation of legislation concerning fitness to plead and the interaction between the Crimes Act 1900 and the Mental Health Treatment and Care Act 1994. When I announced that review, I also announced that I had instructed the department to proceed with the preparation of these amendments. I announced that the government would, as a first order issue, introduce these amendments. I made the announcement last year, on 7 November that the bill would be debated today and would be introduced as a matter of urgency.

That review is progressing well and a detailed discussion paper will be released for broad community consultation later this year. This bill is the first step in the right direction to addressing the interaction between the mental health and justice systems. It upholds the legal principles that underpin our legal system and it expresses community expectations by providing greater clarity and removing ambiguity. It asserts the primacy of the law and the need for justice to be seen to be done. I would like to see this bill passed through the Assembly today so it can commence operation without further delay. I commend it to all members and I take the opportunity to table a revised explanatory statement.

Question resolved in the affirmative.

Bill agreed to in principle.

Detail stage

Clauses 1 to 4, by leave, taken together and agreed to.

Clauses 5 to 7, leave, taken together.

MS TUCKER (10.30): I will be opposing clause 5 and also clauses 6, 7, 9, 10, 12 and 13 but I am not going to go through and keep everyone here even later. I just want to put on the record that-and I have already explained it-it rules out any defence for an accused person which is predicated on a mental factor. I made the argument during the in principle stage that it is, in my view, a diminution of rights which could be overcome without taking away the underlying purpose of this bill.

MS DUNDAS (10.31): I also oppose clause 5. I understand that judges and magistrates are currently uncertain as to whether there are sufficient physical elements of an offence to be established for a non acquittal to be returned or whether they should be considering the mental element of defence, be that criminal intent or a state of mind for grounds of defence such as self-defence. The government's amendment to this clause makes it very clear that a judge should only look at the physical element. Concerns have been expressed to me that this could result in injustice to an accused because in some


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