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Legislative Assembly for the ACT: 2006 Week 3 Hansard (30 March) . . Page.. 897..


MR STEFANIAK (continuing):

The rationale behind the differentiation of the definitions is that the definitions in the current mental health act were drafted for medical purposes and are principally about therapeutic treatment. The definition of "mental impairment"in the code is designed for criminal proceedings. The definition ensures that in a criminal prosecution a person would not be found guilty of a crime if they suffered from a genuine mental impairment which had the effect that they did not know the nature and quality of their conduct, suffered from a mental impairment that had the effect that they did not know that their conduct was wrong, or suffered from a mental impairment that had the effect that they could not control their conduct. That seems to be eminently sensible. Many changes were necessary to replicate that definition. Accordingly, some sections have been redrafted and a number of sections have been changed. The new terminology is "mental impairment".

I accept that the government consulted widely on this. I had some very useful discussions with the Law Society. I also had the chance to discuss this with both Justice Terry Connolly and the DPP, who are quite satisfied with it. All in all the bill is worthy of support, although I flag that there are some problems. It concerns me that there are still a number of issues around the notorious King case that have not been resolved. There are still problems getting King to court. He seems to get the screaming heebie-jeebies when anyone mentions it. I do not know what is going to happen in that regard. I hope those issues will be resolved because there is certainly angst around that case from family members et cetera.

Those are the sorts of areas where we want to ensure that our law is adequate, ensure that justice is done, ensure that people get proper treatment and ensure that cases such as that do not slip through the radar, with unsatisfactory results for everyone concerned. It is a good process but I note that a number of improvements still need to be made to the system. I will leave it to my colleague Mr Smyth to talk about those another day. The opposition will be supporting this bill.

DR FOSKEY (Molonglo) (5.09): In the Chief Minister's presentation speech we were told that this bill implements the first of six key initiatives which together are intended to comprise a new model for dealing with mental health patients who come into contact with the criminal justice system. The intention behind the model appears to be laudable. It is inhumane, inequitable and counterproductive to respond to the symptoms of mental illness using the same rationales and responses used to punish and address purely criminal behaviour.

One of the main purposes of this bill is to ensure that people who commit offences because of the effects of mental impairment are dealt with using a therapeutic response rather than a criminal justice response. Unfortunately, there is considerable anecdotal evidence that the institutions entrusted with implementing this therapeutic response are not working as well as they could be. They suffer from a lack of consistency and a lack of effective independent oversight. They have insufficient commitment to procedural fairness or effective representation of the interests of those who appear before them.

Some sort of ranking possibly needs to be given to the various factors the Mental Health Tribunal needs to take into consideration under section 26 of the Mental Health (Treatment and Care) Act in order to adequately safeguard the interests of people who


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