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Legislative Assembly for the ACT: 2005 Week 02 Hansard (Thursday, 17 February 2005) . . Page.. 620 ..


mental illness and who normally would be quite fit to plead getting off wrongfully because there was not enough rigour in the system. Justice is not done.

Having spoken to a number of victims, I know that it is so traumatic for a family, especially when the crimes are serious ones, to see someone, potentially, cleverly abusing the system. The potential, I think, was there far more in the way the system has been working for 10 years than it will be now that these matters will go back before a court.

Accordingly, the opposition is happy to support this bill. We are pleased to see it has actually come forward. I think lots of groups—both lawyers and victims—were very keen to see this occur. I think it will lead to basically a lot more fairness all round and, accordingly, we support it.

DR FOSKEY (Molonglo) (5.07): Earlier this week the government was notified of my concerns that the members of the community most affected by this legislation had not been properly consulted about its content and implication. To the government’s credit, I understand that a range of meetings and information sharing has since taken place and that many in the mental health community now feel much better informed about the government’s intentions and motivations. There is also, as I understand it, a greater acceptance that the proposed changes will provide some benefits over the present system.

At the same time, I remain concerned that this legislation only seeks to address the problems with our current system identified by the bureaucrats and lawyers and does nothing to address the issues within the current system that are of concern to the mental health community. Nor is it clear that the elements of the current system which are of benefit to people with mental dysfunction have been retained in the new arrangements. Hence we have before us today a piece of legislation which is second best.

Surely, if we are going to the trouble of creating a new process, we should be certain that the new process does not fix one set of problems by creating another. We should instead be taking the opportunity to implement the best possible system for the delivery of justice in the ACT for those before the courts with mental health issues and for the community as a whole.

I would like to take this opportunity to draw the government’s attention to its own consultation protocol, which, if it had been implemented in this case, would probably have led to a better outcome in terms of best practice legislation. We have in the ACT a very informed and articulate mental health community, which, if properly engaged in the debate, would undoubtedly have suggested some useful improvements to the proposed legislative framework.

We know, for example, that there is another Australian model that provides some of the benefits of the court processes in terms of openness and accountability while at the same time changing the process from the usual adversarial court approach to one of inquiry. Perhaps a proper consultation process would have opened the way for some of the positive aspects of this model to be incorporated into ours.

If the government is, however, determined to push this legislation through, it needs to put some safeguards in place to make the process work better for people with mental health


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