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Legislative Assembly for the ACT: 2005 Week 02 Hansard (Thursday, 17 February 2005 2005) . . Page.. 622 ..


to plead for the trial judge, in the event that the matter is committed for trial in the Supreme Court.

This bill re-establishes an important distinction between determining the mental fitness of a person facing a criminal trial and the issue of treating a mentally unfit person. Currently, our law requires the Mental Health Tribunal to address two very different tasks in relation to mental illness: to determine fitness to plead in a criminal trial, and to make orders for the involuntary treatment of people who have a mental impairment. The current means of determining the mental health of a person accused of a crime is inconsistent with the standards of a criminal trial.

This bill upholds the high standards of proof required for criminal trials, without altering any existing law or arrangements that provide for the treatment of people with a mental illness or dysfunction. The bill only intends to make this minor change and does not address the whole question of the definitions used in mental health law and criminal law and all major structural changes based on other jurisdictions, such as Queensland and South Australia, and other models. These questions will form part of the major work that is currently being done in the area of forensic mental health law and will require close consultation and community participation.

I look forward to further debate and discussion of future reforms, as does, of course, the Attorney-General. I also foreshadow that I will be introducing some government amendments which will provide for transitional provisions.

Question resolved in the affirmative.

Bill agreed to in principle.

Detail stage

Clauses 1 to 6, by leave, taken together and agreed to.

Clause 7.

DR FOSKEY (Molonglo) (5.16): I move amendment No 1 circulated in my name. [see schedule 2 at page 633].

I am moving this amendment because of privacy concerns raised with me by the mental health community. When the tribunal made decisions about fitness to plead, there was no need for the details of the defendant’s life to be made public. With the decision to be made be the court, it is possible that the life experiences of the person before the court will be presented in such a way that, while relevant to the decision at hand, would be very prejudicial to them continuing to function in the community in the ordinary way to which anyone else is entitled. This may occur even though there is no public interest to be served by the rest of the world being privy to the information.

The amendment asks that this matter be given consideration by the court before hearing evidence and submissions, with a view to the court being closed in circumstances where there are privacy concerns. Nothing in this amendment prevents proper testing of evidence put before the court. It simply prevents the details of the defendant’s life being


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