Page 3846 - Week 12 - Thursday, 30 October 2014
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I would like to further highlight the role of government in relation to protection of human rights and people with a mental illness who will be affected by the new provisions in this bill. The role of government is not simply limited to refraining from arbitrary or illegal actions which unreasonably limit or infringe on human rights. The role of government is also to support and promote rights within the community.
While some of the new provisions in the bill engage and proportionally limit rights, a number of the amendments engage and support rights for people in our community who have a mental illness.
The explanatory statement for the bill highlights the government’s obligations to undertake measures to protect citizens, described as the doctrine of positive obligations. This doctrine encompasses the notion that governments not only have a responsibility to ensure that human rights are free from violation but that governments are required to provide for the full enjoyment of rights.
This notion has been interpreted as requiring states to put in place legislative and administrative frameworks designed to deter conduct that infringes human rights and to undertake operational measures to protect an individual who is at risk of suffering treatment that would infringe their rights. For example, the bill supports the rights of non-discrimination and equality before the law, protection from torture or cruel, inhumane or degrading treatment, and humane treatment when deprived of liberty.
Aspects of the bill also complement the government’s justice reform strategy, which is considering a broad range of issues relevant to the criminal justice system, including therapeutic jurisprudence responses for offenders with alcohol and other drug and mental health issues. Therapeutic jurisprudence can be described as being practical findings from the behavioural sciences to suggest techniques that legal professionals can use to do their job better.
The justice reform strategy provides an opportunity to consider further measures to build on existing therapeutic jurisprudence approaches in the ACT. These approaches improve outcomes for offenders and offer opportunities for diversion from the justice system and reductions in recidivism.
Today I would like to focus on the new forensic provisions in the bill that aim to better address the intersection of people with a mental illness and the criminal justice system. Most people with a mental illness do not commit crimes. Nevertheless, people with a mental illness comprise a disproportionate number of the people who are arrested, who come before the courts and who are imprisoned.
The new forensic provisions in chapter 7 apply to forensic patients, people with a mental illness or mental disorder who have come into contact with the criminal justice system. Forensic patients may include people who are detained in a correctional centre or place of detention, who are serving a community-based sentence, who are required to submit to the jurisdiction of the ACAT by a court order made under the Crimes Act provisions relating to unfitness to plead and mental impairment, or who are required to submit to the jurisdiction of the ACAT by a court order made under the commonwealth Crimes Act.
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