CRIMINAL LAW CONSOLIDATION (MENTAL IMPAIRMENT) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 August 2016.)

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (15:45): I speak on behalf of the opposition to deal with the Criminal Law Consolidation (Mental Impairment) Amendment Bill 2016 and indicate that we will be consenting to the bill. This is a bill introduced by the Attorney-General on 4 August 2016 and it substantially amends a division of the Criminal Law Consolidation Act relating to mental competence and touches on provisions under the part covering intoxication.

The most concerning thing about this bill is that it has taken since November 2014 to come to this house. It is an important piece of reform. The Sentencing Advisory Council has, obviously, produced a lengthy report in dealing with the review of mental incompetence and how it is involved and applied in our criminal justice system. It is one which does affect questions of sentencing but, in this case, the bill relates to how we deal with the determination of mental impairment and culpability of a party in respect of their having committed a crime.

The delay is inexplicable. The consultation process by the Sentencing Advisory Council was, clearly, comprehensive and the data extensive, and it is just disappointment after disappointment from this government, when they have a piece of reform which obviously justifies being dealt with in a timely manner, and they drag the chain. In any event, let us go to the report itself. It included legislative reform dealing with the test of mental incompetence, the fixing of limiting terms and the supervision of defendants released on licence (that is, they have been dealt with and found to be mentally incompetent).

The position ought to be made clear (and I think, probably, the Attorney did so in his second reading) that, essentially, we require in our criminal justice system that someone is fit to plead and has the mental capacity to have formed a view and undertaken conduct for which they should be found to be culpable and there has to be a finding, essentially, of that competence—which, it is fair to say, is presumed, unless an application is made for the protection of a finding of mental incompetence.

Historically, members will be aware that this played a very strong part in our criminal justice system and was much sought after in the days when felonies resulted in execution. The death penalty being a very final sentence for someone accused of murder or some other serious felony meant that the accused might favourably consider it as something worthy of applying for if it was to avoid the gallows. Nowadays, I think it is fair to say that, although someone has been declared mentally incompetent, in respect of assessing culpability for an offence and avoiding the conviction and sentencing process, they still have to comply with certain obligations, most often to be released in a circumstance of licence, so that they have to agree to do or not do certain things and that privilege can be withdrawn.

Anecdotally, concern had arisen that this process of applying to be mentally incompetent, almost as a defence to avoid the conviction, was being too easily granted. It was apparently being used by people who did not strictly have mental incompetence standards which would be acceptable or a mental health disorder. In short, I think it is fair to say that, when the statistics were looked at, although they disclosed that almost a quarter of the offenders who had successfully used the mental incompetence argument were suffering from an impairment caused by drug-induced psychosis or from substance abuse or dependence, we did not actually have a breakdown of what degree of impairment was caused by the psychosis and/or the substance abuse.

It is interesting data. I think it is fair to say that when one reads the Sentencing Advisory Council report and looks at the statistics, they are highly qualified in this report for good reason, so although the Attorney-General's office has made provision for these statistics with no reason to doubt them, the fact is that there is no breakdown of the level of comorbidity, if I can use that general description. Therefore, that certainly leaves it open to some criticism, if the development of the amendments here are based on that data, so I do not rely heavily on that in considering this matter or, indeed, advising this side of the house on this matter.

I think it is reasonable to take into account that, aside from the data, the personnel who comprise the Sentencing Advisory Council are senior in their field. They comprise Queen's Counsel, former prosecutors, former Supreme Court judges, and other members of the community who are concerned about mental health, including a representative from the public advocate's office. We have senior people who know what they are talking about, who have had extensive experience and who represent a very broad spectrum for this consideration. On that basis, I thank them for their report and say that I think it is reasonable that we take into account their views.

The Parole Board chair, for example, Frances Nelson QC, was a member of the board and obviously has expressed the view that she felt that, as a result of the current regime continuing, it is at least likely that there are people currently housed in James Nash House, having received the benefit of a mental impairment diagnosis as such and incompetency declaration, taking up valuable space—they are not her words, they are mine—when frankly they probably should have been in prison.

This is an issue that is dear to my heart because that would be very disappointing, given the precious resource of the number of forensic mental health beds in this state. Whilst there has been a stepdown program added to James Nash House under this government—a small 15-bed facility, I think—we still have a chronic overload of people who are clearly suffering from mental health conditions and are forced to be housed and accommodated in other facilities, particularly prisons. It is totally unacceptable.

This bill suggests that it is remedying an ill—that is, to make sure that those who are in James Nash House and have the benefit of the support in there are truly mentally incompetent. The way this bill addresses a toughening up of the gatekeeping to get into and benefit from that facility is to make it clear that the defendant, to be determined under its definition of 'mental incompetence', is totally unable to control his or her conduct. A partial inability is just not sufficient.

With the remedies that are recommended in the amendments, there is to be a heightening of the concept of community safety being paramount in considering whether someone be released on lease or licence, in addition to making it a harder threshold to be able to actually access and qualify for the mental incompetence protections that come with that. This bill also provides for a 14-day detention for a licensee where future breaches are likely or treatment is required. I note that is unsurprisingly opposed by the Law Society.

Whilst I think it is fair to say they are not overjoyed about the way the government are proposing to tighten the gatekeeping and threshold, they do support an alternate regime for summary and minor indictable offences. They remain totally opposed to a 14-day detention, and there is some merit in that. The fact is that these people, if they are determined to be unwell, should not be detained. If you are not competent to be tried for the offence, then you should not be punished if you then breach a licence.

Frankly, this raises the question about whether they are fit to even enter into the agreement to actually do or not do whatever is required under the terms of the licence in the first place. In any event, I appreciate this is a difficult area. It is difficult for the judges who have to make the assessments and determinations, but it is not unreasonable that the Law Society has raised this issue.

The alternative is that they can be left at large, but this bill is making the determination that they should be detained. My great concern is that by putting a 14-day detention option into this bill, it means that we are doing something that is inconsistent with the way we have treated people in this circumstance. I am with the government on saying, 'Let's toughen the threshold level.' I am not overjoyed about this 14-day detention, but in reality, we know that at present some of these people are going to gaol. I recently asked questions in the parliament on behalf of a 35-year-old woman who was being held at the Women's Prison. I am pleased to report that she has finally been transferred to James Nash House.

It is completely unacceptable that these people be imprisoned. Be that as it may, the reforms are there. As I indicated, there will be a provision to tighten up the definitions under part 8 of the act (the intoxication provisions) as well. I indicate that the opposition is supportive of the bill. We can only hope that if the government's commitment to tidying this up results in some extra bed space for those who are languishing in prisons and other places who should be in forensic mental health places, then that is a good thing.

The public need to be on notice that, to have access to a mental incompetence declaration, they need to have an understanding that they will not be let in easily to this if they are under the influence of drugs, and that is being dealt with by requiring a total inability, rather than a partial inability. Those on drugs are on notice.