Criminal Law Consolidation (Mental Impairment) Amendment Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 12 April 2017.)

The Hon. J.R. RAU: Of course, it would have been ideal if the bill had returned unamended; however, as it turns out, that was not to be. That said, in an effort to move the matter along, and not wishing to allow the perfect be an enemy of the good, the government intends to accept amendments Nos 3 to 10, noting, as I said, that we would still rather that we were not doing this; nonetheless, in an attempt to move the matter along, we will.

Amendments Nos 1 and 2 are not acceptable. Very briefly, in case anyone elsewhere chances to look at this in Hansard, both amendments were moved by the Hon. Mr McLachlan and are inconsistent with the government's election commitment. It is an election commitment, not just a—

Mr Duluk: What about all the other ones you don't follow through with?

The Hon. J.R. RAU: Actually, you will find that the actual record of this government in meeting its election commitments is outstanding.

Mr Duluk: What about the Repat one? What about the closure of the Repat?

The CHAIR: Member for Davenport!

Mr Knoll: Kick him out.

The CHAIR: The member for Schubert has decided you should leave the room, so do not give us another reason to re-evaluate his suggestion.

The Hon. J.R. RAU: As I was saying, the government made an election commitment to prohibit anybody whose mental impairment was caused by self-induced intoxication. This is the person who consumes so much of something that they are in a state where they commit a crime and then subsequently say, 'I didn't know what I was doing,' having been entirely responsible for placing themselves in that debilitated state in the first place.

What the government said was that anybody who does that sort of thing, that is put themselves in a case of being mentally incompetent, should not be able to go around using a defence of mental incompetence to evade criminal liability for what they have done. Mr McLachlan, apparently, does not agree with that. The amendment moved by Mr McLachlan enables those people who have put themselves in that position to nevertheless have the opportunity to be treated in a way that enables them to evade criminal responsibility for their behaviour. Obviously, we do not accept that.

I hope those people out there in the public interested in whether or not the government is attempting to make it clear to people that criminal behaviour is not okay—and the government is closing down the loopholes that people are using to evade criminal responsibility—pay attention to the fact that this particular closing of a loophole is being denied the government and the people of South Australia by, in particular, a very learned member of Her Majesty's Opposition in the other place.

The second amendment goes even farther. The government is concerned about the second amendment because it results in the court being asked always, in effect, to substitute itself for the government of the day and make a policy decision about who is and who is not captured by the mental incompetence defence. What it says is, 'Notwithstanding the whole regime set up in part 8A, if the court thinks it is in the "interests of justice" for somebody who is transparently not mentally incompetent to nevertheless be treated as if they are, that's good enough for us.' What an appalling situation that is.

It is the role of the legislator to create the defence to any offence it creates. Upon a finding of fact, the court applies those facts to the law, interprets the law, and makes a decision as to whether the facts, as found, enliven a defence. It is the parliament that should decide what factual circumstances a person is able to avail themselves of in a defence of mental incompetence, or not.

The amendment about which I am now speaking promotes inconsistency in giving a broad and unfettered discretion as to who is entitled to a finding of not guilty due to mental incompetence or not. Because it is discretionary, it is almost certainly, virtually unreviewable. So, we agree with little or virtually no enthusiasm to the first amendments, but we cannot abide the other two amendments about which I have just spoken for the reasons that I have briefly explained.

I should go on to say that, by providing the judiciary the wide discretion here, there is a real fear that it cannot be applied consistently because every person's discretion obviously will be exercised independently. There is no guidance as to how it is to be exercised. For those reasons, without going any further, we do have a serious issue with those two amendments.

Ms CHAPMAN: In respect of the Criminal Law Consolidation (Mental Impairment) Amendment Bill 2016, which has been returned from the other place with substantial amendment, I indicate that the opposition supports all of the amendments. I will make a point in respect of amendment Nos 1 and 2, which appear to trouble the Attorney most.

The concept of introducing an amendment to our criminal law system to prevent or prohibit someone who has self-inflicted their own state and become intoxicated, rendering them into a state of mental impairment, then being able to use that as a defence to their criminal conduct is one for which we have some sympathy. We note therefore, in the drafting of this legislation, that that is the principle objective. What has become clear in the debate on this bill, though, is that, when one is establishing whether it is a cause that is whole or in part or whether it is substantially caused, there can be other factors.

We are not necessarily just dealing with a single person who is otherwise completely mentally functioning and an intoxication conduct causes them to become mentally impaired. People do not come in simple boxes. It is pretty clear that there are circumstances, for example, where they may have a disability or some other impairment which can cause there to be some clouding of the issue. We need to be absolutely clear that whilst the principal objective of the government is given some sympathy, we need to provide some protection in the application of the law.

I have heard this Attorney and previous attorneys go on about their grand statements in an election campaign about how they are going to stop this or minimise that or throw out this or do certain things and then, when it comes to the drafting of the legislation, we find that the imperfect world comes crumbling down. We say that it is important that we allow for this provision and that obviously it be employed in this legislation.

It is disappointing that the government takes this petulant attitude about what I think has been a worthy debate in the other place, which has shed some light on some of the deficiencies of these bald promises. When we come down to the application, these deficiencies are revealed. It is disappointing that the Attorney has taken such a petulant view; nevertheless, I expect we will be in deadlock on this matter again in due course.

Amendment Nos 1 and 2:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 1 and 2 be disagreed to.

Motion carried.

Amendments 3 to 10:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 3 to 10 be agreed to.

Motion carried.