Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4133 ..
MS TUCKER (5.06): I have listened very closely to the arguments that have been put. I have to be honest and say I was undecided at the beginning, although I was favouring Mr Stefaniak's amendment. Mr Stanhope's explanation has persuaded me that this provision is probably okay. I did say in my in-principle speech that I have concerns. I still have concerns. I understand what the Attorney-General is saying. I guess I will just have to keep an eye on it.
This is in the legislation in all the other states, apart from Victoria. The situations the Chief Minister described seem to require this sort of provision. I thought that clause 28 (1) (b)-"the person did not know that the conduct was wrong"-might cover an outburst by a person with the syndrome the Chief Minister described. I guess they would not know it was wrong. I am not quite sure why clause 28 (1) (b) would not cover that.
Mr Stanhope: They might know it is wrong. They might know it is outrageous. They cannot stop it.
MS TUCKER: The Chief Minister thinks they might know it was wrong. That was not my understanding of how you described the condition. I did not understand that it was an involuntary thing; that they might know it was wrong.
I will not support Mr Stefaniak's amendment, although I do put on the record that I am slightly concerned.
MS DUNDAS (5.08): It has been interesting listening to the debate on whether the person could control their conduct and what impact it would have on our legal system if we left this provision on the statute book. The Butler committee in England examined this issue in the mid-1970s and put forward many arguments. It concluded that this broad definition of mental impairment allows a jury to hear psychiatric testimony based on the latest expertise and, most importantly, leaves the ultimate question of responsibility to a jury, the basis of our legal system.
I understand problems have been raised in a number of jurisdictions about experience with definitions. But weighing up the evidence presented, I believe the balance of authority favours the view that ultimately the question of whether a condition is a disease of the mind and whether a defendant was able to control their conduct is a matter for a jury. I think it is important that we leave this definition so that a jury to can consider this under the criminal code. Hence I will not be supporting Mr Stefaniak's amendment.
MR STEFANIAK (5.10): I can count. With Ms Dundas supporting the Chief Minister, my amendment will not succeed.
Ms Tucker made a couple of valid points. While she is prepared to let the Chief Minister proceed with this, she will keep a close eye on it. I think that is very sensible. I do not want to see this territory get in a situation like we had with the Nadruka case. The opposition will be keeping a very close eye on this provision and, if necessary, will move amendments, hopefully with more support.