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Legislative Assembly for the ACT: Week 9 Hansard (19 August) . . Page.. 3897..

Thursday, 19 August 2004

The Assembly met at 10.30 am.

(Quorum formed.)

MR SPEAKER (Mr Berry) took the chair and asked members to stand in silence and pray or reflect on their responsibilities to the people of the Australian Capital Territory.

Crimes Amendment Bill 2004 (No 3)

Mr Stanhope, pursuant to notice, presented the bill, its explanatory statement and a Human Rights Act compatibility statement.

Title read by Clerk.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (10.34): I move:

That this bill be agreed to in principle.

Mr Speaker, our democracy is supported by three fundamental pillars: executive government, the legislature and the judiciary. These three institutions ensure that laws are made and applied in a manner that is not beholden to any individual or any group within our community.

Each institution is inevitably accountable to the public and open to public scrutiny. Everyone has the right to be recognised as a person before the law. Conversely, the law has an obligation to treat everyone equally and impartially. The judiciary is the institution that applies the law equally, impartially and openly.

As the Assembly would know, last year I asked my department to establish a high level committee to examine the intersection of criminal law and mental health. A strategy to solve a variety of problems was recommended and is now in action. There are long-term issues on which the government needs to gather evidence and make careful decisions and there are medium-term solutions that we are acting on now to better prepare us for the future.

The bill I present today will solve an outstanding problem with the territory's criminal justice system. This bill will empower the judiciary as the institution that determines an accused person's mental fitness to plead. The Australian tradition of criminal law presumes that a person accused of a crime is mentally fit to plead to a charge. Mental fitness is essential to the procedural fairness of a trial and to test the culpability of the accused person.

A fundamental rule of law is that an accused person understands what they are being charged with and that they are mentally capable of mounting a defence to the charge. The issue of fitness to plead is explicitly about the person's mental fitness at the time of the hearing. There are two fundamental elements to proving a criminal offence: the physical element of the offence, namely, the result, conduct or circumstance caused by

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