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Legislative Assembly for the ACT: 2005 Week 02 Hansard (Thursday, 17 February 2005 2005) . . Page.. 618 ..


majesty’s pleasure, which meant they were in those days locked up in an asylum until such time as perhaps they recovered or, if they did not recover, such time as the executive decided they should stay there.

Times certainly have changed. In the ACT we have had over the last 10 years a Mental Health Tribunal actually assessing persons’ fitness to plead. Whilst I think the Mental Health Tribunal has obviously done a very good job in many areas, there is an elementary clash between the therapeutic responsibilities of the tribunal and the criminal justice responsibilities, the need for openness and the need to ensure that the various parties—people who are giving evidence—are able, for example, to simply be cross-examined, the normal, basic things which we see in our criminal justice system.

There has been a lot of angst in the ACT, too, from victims in relation to the current system having the potential for significant abuse—unwitting abuse but simply abuse. The King case, I think, was a case in point. Representatives of the family of the deceased spoke to me, spoke to the attorney and probably spoke to a number of people in this place. Indeed, there were some significant concerns raised there that every time the accused was due to go to court he basically got the wobblies and was assessed as perhaps not being able to continue because the thought of going to court induced some mental state in him.

I suppose that happens to lots of defendants going to court. Maybe that is not exactly enough to say that there are significant mental problems there. In cases like that, if a person’s mental state was actually assessed in the way it was before 1994 and the way it should be now, I think that would be a far better thing for the administration of justice.

It is interesting that in the last decade we have had a significant increase in the number of persons suffering from mental illness, and that trend does not seem likely to go away. I think it is even all the more important that we balance everyone’s rights—the rights of victims, the rights of society, the rights of an accused—to ensure as best we can that justice is done.

The opposition feels that justice is certainly best done by having the issue of fitness to plead to a criminal charge assessed by a court; so fundamentally what is proposed here by the Attorney-General, which I think brings us into line with every other jurisdiction in Australia, is a very sensible move.

Having indicated that, I must say that the route we find ourselves on here today is open to some significant and reasonable criticism. The bill was before the last Assembly. We found out in August—we were all set to debate it, or getting pretty close to debating it because it was brought on fairly quickly—that the mental health groups actually had received little, if any, consultation.

There was great consternation then as a result of that and certainly the opposition, the Greens, the Democrats and Mrs Cross then were very concerned to see that people were actually consulted. Accordingly, the government did not finalise it in August. I do not think, though, that we should have been in that situation. It would have been sensible if the consultation had actually occurred then.


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